McDaniels v. Castelo

          ORDER GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AS UNEXHAUSTED; REQUIRING PETITIONER TO MAKE ELECTION RE: DKT. NO. 13

         Petitioner Alpacino McDaniels, an inmate at California Men's Colony in San Luis Obispo, California, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a conviction from Alameda County Superior Court. Pending before the Court is respondent's motion to dismiss the petition for a writ of habeas corpus as unexhausted. Dkt. No. 13. Petitioner has not filed an opposition, and the deadline to do has since passed. However, on September 29, 2019, petitioner mailed to the Court the California Supreme Court's September 11, 2019 summary denial of his habeas petition. Dkt. No. 16. For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART respondent's motion to dismiss and requires petitioner to make an election.

         BACKGROUND

         Petitioner was found guilty by an Alameda County Superior Court jury of first degree murder and possession of a firearm by a felon. The jury also found true three firearm enhancements accompanying the murder count, including that petitioner personally and intentionally discharged a firearm causing death. The trial court sentenced petitioner to a total term of 50 years to life in prison, composed of a term of 25 years to life for the murder, a consecutive term of 25 years to life for the discharge of a firearm causing death, and a concurrent term of two years for the firearms possession offense. A twenty year term and a ten year term for the other two firearm enhancements were stayed. Dkt. No. 13-1 at 33-34.

         Petitioner appealed the conviction, and on April 17, 2018, the California Court of Appeal remanded the case to consider whether to strike the firearm enhancements and to correct errors in the calculation of custody credits and the abstract of judgment, but otherwise affirmed the judgment. Dkt. No. 13-1 at 33-60. On June 20, 2018, the California Supreme Court denied the petition for review. Dkt. No. 13-1 at 62.

         On September 20, 2018, petitioner filed a petition for a writ of habeas corpus in Alameda County Superior Court, Dkt. No. 13-1 at 64-452, which was denied on October 29, 2018, Dkt. No. 13-2 at 3-27. On March 4, 2019, petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal. Dkt. No. 13-2 at 29-410.

         On March 18, 2019, petitioner filed a petition for a writ of habeas corpus in this Court, which commenced the instant action. Dkt. No. 1. In his petition, petitioner acknowledged that not all his claims were exhausted and stated his intention to file a motion for a stay and abeyance. Id. at 12.

         On April 18, 2019, the Court found that the instant petition stated the following cognizable claims for federal habeas relief: (1) appellate counsel was ineffective; (2) the trial court erred by admitting tainted evidence; (3) the prosecution either failed to preserve, or failed to turn over, exculpatory evidence; (4) the trial court erred in allowing the video reenactment; (5) the prosecutor committed misconduct when he allowed false testimony at trial; (6) the trial court committed instructional error by failing to give the requested pinpoint instruction; (7) the prosecutor committed misconduct when he commented on petitioner's failure to testify; and (8) the prosecutor's closing argument constituted misconduct. Dkt. No. 11 at 2. The Court ordered respondent to show cause why the petition should not be granted. Id. The Court noted that petitioner had acknowledged that he had not exhausted all claims, but declined to sua sponte address the issue of exhaustion of state remedies because the Court could not determine from the record which claims had been exhausted. Id.

         On May 9, 2019, the California Court of Appeal denied the petition for a writ of habeas corpus. Dkt. No. 13-2 at 412-13.

         On June 10, 2019, petitioner submitted a petition for a writ of habeas corpus to the California Supreme Court, challenging his convictions and sentence on the following grounds: (1) appellate counsel was ineffective for failing to raise the claims raised in the petition; (2) the trial court erred in denying petitioner's motion to exclude identification testimony; (3) the trial court erred in admitting video reenactment of the route the shooter walked because the video reenactment was irrelevant, misleading and confused the issue; (4) the prosecutor committed misconduct when he knowingly used false testimony; (5) the trial court erred when it denied petitioner's request for a pinpoint jury instruction about suggestive identification procedures; (5) the prosecutor committed misconduct by commenting on petitioner's silence during the prosecution's rebuttal to the defense's closing argument; and (6) the prosecutor's rebuttal to the defense's closing argument was improper under Griffin v. California, 380 U.S. 609 (1965). Dkt. No. 13-2 at 415-517.

         On July 17, 2019, respondent filed the instant motion to dismiss for failure to exhaust state remedies. Dkt. No. 13. As of this date, petitioner has not filed an opposition. Nor has he filed a motion to stay and abey this action. However, on September 29, 2019, petitioner filed with the Court the California Supreme Court's September 11, 2019 summary denial of his habeas petition. Dkt. No. 16.

         DISCUSSION

         Respondent argues that the petition should be dismissed as unexhausted because only Claim No. 6 (instructional error when the trial court failed to give the requested pinpoint instruction) and Claim No. 8 (prosecutor's closing argument constituted misconduct) are exhausted.^[1] Dkt. No. 13. Respondent acknowledges that Claim Nos. 1, 2, 4, 5 and 7 were presented to the California Supreme Court in the June 10, 2019 state habeas petition, but argues that the petition should be dismissed as a mixed petition because as of the date the motion to dismiss was filed, the California Supreme Court had not yet ruled on the state habeas petition. Respondent further argues that Claim No. 3 was not fairly presented to the California Supreme Court because it was omitted from the habeas petition filed with the California Supreme Court. Petitioner has not responded to the motion to dismiss, but presumably he contends that the motion should be denied because as of September 11, 2019, his state court remedies have been exhausted. Respondent did not responded to petitioner's filing of the California Supreme Court's September 11, 2019 denial of petitioner's state habeas petition.

         A. Legal Standard

         Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by providing the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b)-(c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). The state's highest court must be given an opportunity to rule on the claims even if review is discretionary. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke “one complete round of the State's established appellate review process.”). To comply with the fair presentation requirement, a claim must be raised at every level of appellate review; raising a claim for the first time on discretionary review ...