Spivey v. Gipson

W. C. SPIVEY, III, Petitioner, v. CONNIE GIPSON, Warden, Respondent.

Case No. 1:12-cv-00206-LJO-SKO-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: August 23, 2013

ORDER VACATING THE COURT'S

DISMISSAL OF PETITIONER'S MOTION

FOR A STAY (DOCS. 29, 12)

ORDER DEEMING PETITIONER'S MOTION

FOR LEAVE TO FILE AN AMENDED

PETITION TO BE A MOTION FOR A STAY

OF THE PROCEEDINGS (DOCS. 30, 12)

FINDINGS AND RECOMMENDATIONS TO

DENY PETITIONER'S MOTION FOR A STAY

(DOCS. 30, 12)

OBJECTIONS DEADLINE:

THIRTY (30) DAYS

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303. Pending before the Court is Petitioner's motion for leave to file an amended petition for writ of habeas corpus that was filed on February 12, 2013, which was accompanied by a proposed first amended petition (FAP). Respondent filed opposition to the motion to amendthe petition on March 8, 2013, and Petitioner filed a reply styled as a traverse on March 22, 2013. Petitioner filed a supplemental reply without leave of Court on August 19, 2013 (doc. 34). Because the information contained in the supplemental reply is not determinative of any issue pertinent to the outcome of the motion, the Court exercises its discretion to consider Petitioner's supplemental reply without having permitted Respondent to file a sur-reply. Respondent will have an opportunity to address any of the supplemental material in objections to these findings and recommendations.

I. Summary of the Proceedings in the Present Case

In the petition filed on February 13, 2012, Petitioner alleged he was an inmate of the High Desert State Prison (HDSP) serving a sentence of life without parole imposed by the Merced County Superior Court for Petitioner's conviction in May 2008 of first degree murder with special circumstances. Petitioner raised three claims, including a suggestive photo identification, discovery withheld by the prosecution, and jury selection error. (Pet., docs. 1 and 10, 1-5.) Petitioner alleged that he exhausted all state court remedies as to these claims.

Although the initial petition was not verified, on March 19, 2012, Petitioner filed a verification of his petition with a copy of the initial petition. (Doc. 10.) On the same date, Petitioner filed a motion for leave to file an amended petition to raise the following claims: 1) Petitioner was deprived of his right to have every element of the offense proved, 2) the charges were impermissibly broadened, 3) trial counsel was ineffective at unspecified critical stages of the trial, and 4) there wasinsufficient evidence to support a conviction of attempted robbery or a special circumstance finding. (Doc. 12, 1-2.) Petitioner contended that as to the claims sought to be added to the petition, he had not exhausted his state court remedies. (Id. at 1.)

The motion to amend the petition was construed as a motion to stay the proceedings. Respondent opposed the motion and answered the petition on November 1, 2012. In the answer, Respondent addressed Petitioner's three claims of trial error on the merits. (Doc. 24, 6-30.) Petitioner filed a reply to the opposition to the motion for a stay, styled as a traverse, on November 19, 2012. The motion for a stay was dismissed as moot when the Court mistakenly relied on a record that did not pertain to Petitioner and incorrectly concluded that Petitioner had filed a petition in the California Supreme Court which had been denied. The Court set a deadline for a motion to amend the petition, and in response, Petitioner filed the motion to amend the petition that is before the Court.

In his motion to amend the petition, Petitioner seeks to raise the following four grounds: 1) Petitioner was deprived of his rights to a fair trial and equal protection of the law by instructions that permitted the jury to find Petitioner guilty on a felony murder theory and thus to convict Petitioner of an allegedly willful murder without the prosecution's having to prove beyond a reasonable doubt the willfulness element of murder; 2) the charges were broadened in violation of Petitioner's Fourteenth Amendment right to due process of law when the element of willfulness was removed from the jury's consideration; 3) Petitioner's Sixth and Fourteenth Amendment right to the effective assistance of counsel was violated by trialcounsel's failure to correct the charging information to remove the "willful" element from count one, and to declare a mistrial when the verdict omitted a finding on willfulness; and 4) Petitioner's right to due process of law was violated by the insufficiency of the evidence to support a conviction for attempted robbery and thus to satisfy the finding of special circumstances relating to counts one and two. (Doc. 31, 7-15.)

Respondent argues that the motion to amend the petition should be denied because the claims Petitioner seeks to add are untimely, do not relate back to the original habeas petition, and remain unexhausted. Respondent further contends that there is no basis for equitable tolling of the statute of limitations. Respondent argues the motion to amend the petition should be denied because the amendment would be futile.

II. Background

Petitioner is serving a sentence of life without possibility of parole that was imposed in the Merced County Superior Court (MCSC) in May 2009 for first degree murder in the attempt to commit robbery and with use of a knife, and attempted robbery with prior convictions. On appeal, the judgment was affirmed (case number F058019) by the Court of Appeal of the State of California, Fifth Appellate District (CCA). (LD 1, 2; LD 4.) The California Supreme Court (CSC) denied Petitioner's petition for review on November 10, 2010 (case number S186005). (LD 6.)¹

On February 17, 2011, Petitioner filed a habeas petition raising the prosecution's failure to disclose material favorableevidence. (LD 7.) Petitioner's signature on the petition is dated December 8, 2010. (Id. at 6.) There is no proof of service or other documentation that would indicate when the petition was provided to prison authorities for mailing or what type of mailing system was used.

The petition was denied on April 4, 2011, by the MCSC, which reasoned that the Petitioner's contentions did not constitute newly discovered evidence, all claims were raised or could have been raised on appeal, and Petitioner had failed to establish an exception to the rule barring reconsideration of the claims. The MCSC cited In re Harris, 5 Cal.4th 813, 825-26 (1993) and In re Waltreus, 62 Cal.2d 218, 225 (1965). (LD 8.)

Petitioner filed another habeas petition in the MCSC on November 1, 2011, raising the four new claims he seeks to raise in the present motion. (LD 9, 1; LD 10, 1:18-19.) The petition was signed on several pages with a date of October 20, 2011. Petitioner has not provided any declaration concerning when he delivered the petition to prison authorities or mailed the petition. (LD 10, 1:18-19.)

On December 7, 2011, the MCSC denied the petition. The MCSC reasoned that Petitioner had filed a successive petition that did not raise all claims in one timely filed habeas petition, and thus the petition would be denied as abusive because Petitioner had not demonstrated that a fundamental miscarriage of justice would result if the MCSC declined to entertain his claims. The MCSC cited In re Clark 5 Cal.4th 750, 797 (1993). (LD 10.)

Petitioner's third state habeas petition was filed in the CCA on January 10, 2012 (case number F064031), and raised the four newclaims. (LD 11.) The petition form is dated December 12, 2011. (Id. at 6.) The attached proof of service by mail indicates that Petitioner deposited an unspecified document in the mail deposit box at High Desert State Prison on December 12, 2011. Also attached to the petition form is a petition and memorandum of points and authorities which bears the date of October 20, 2011, next to the signature. (Id., attachment at 14.) A motion for appointment of counsel, verification, supporting declaration, and declaration of service by mail of the petition and motion for counsel attached to the end of the petition are dated January 5, 2012. (LD 11.) A "CDC-119" log of "SPECIAL PURPOSE LETTERS" reflects that on January 6, 2012, a letter in category "193" was sent to the CCA from the prison. (Doc. 34, 9.) The petition was summarily denied without a statement of reasons or citation of authority on February 3, 2012. (LD 12.)

The Court takes judicial notice of the docket of the CCA in the Petitioner's third habeas proceeding of In re W. C. Spivey III, case number F064031. The docket reflects that after the petition was denied on February 3, 2012, the CCA received correspondence from Petitioner concerning a request for a ninety-day extension of time on February 6, 2012, and a letter advising the CCA of Petitioner's new cell number on February 9, 2012. The "CDC-119" log shows that Petitioner's letters in categories "1" and "193" were sent from the institution to the CCA on February 1 and 6, 2012. (Doc. 34, 9.)

On February 8, 2012, Petitioner filed his petition here alleging the three original claims concerning an allegedly suggestive pretrial photographic line-up, denial of a motion for new trial based on Brady error, and denial of Petitioner'sBatson motion to dismiss the jury panel. (Doc. 1, 25.)² On March 19, 2012, Petitioner filed his motion to amend the federal petition and for a stay of the proceedings to exhaust his four new claims in state court. (Docs. 12, 13.) The CDC-119 log of special purpose letter shows that Petitioner sent correspondence to this Court on March 14 and 15, 2012. (Doc. 34, 9.)

On March 28, 2012, Petitioner's fourth state habeas petition was stamped filed in the MCSC. (LD 13.) The CDC-119 log of special purpose letters shows that an outgoing letter...