Wilkins v. Macomber

KEENAN G. WILKINS, Petitioner, v. JEFF MACOMBER, Respondent.

Case No. 16-cv-00221-SI

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

January 7, 2019

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION FOR RECONSIDERATION AND REQUIRING CHOICE BY PETITIONER

Re: Docket No. 70

Keenan Wilkins, a/k/a Nerrah Brown, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his conviction from the Alameda County Superior Court. Respondent moved to dismiss for failure to exhaust state court remedies and the Court granted the motion to dismiss. Docket Nos. 53, 58. Now before the Court is Wilkins's motion for reconsideration. Docket No. 70.

BACKGROUND

I. Procedural Background

Wilkins was convicted in Alameda County Superior Court of seven counts of second degree robbery, seven counts of false imprisonment by violence, and one count of making criminal threats. Docket No. 53 at 1-2. The superior court sentenced him to 100 years to life in prison on December 26, 2012. Id. at 2; Docket No. 45 at 20.¹

Wilkins, through appointed counsel, filed a direct appeal of his conviction. The CaliforniaCourt of Appeal affirmed the judgement of conviction on April 28, 2015. Docket No. 53 at 2. Wilkins then filed a petition for review, which the California Supreme Court denied. Docket No. 53, Ex. B, C. Both before and after his conviction, Wilkins filed multiple petitions for writs of habeas corpus in state court.

Wilkins filed this action pro se in January 2016. Docket No. 1. In August 2016, Wilkins, still acting pro se, amended the petition. Docket No. 15. In January 2017, this Court granted Wilkins's request for counsel and counsel was appointed in February 2017. Docket Nos. 34, 36. In May 2017, Wilkins's counsel filed a new amended petition (the "Amended Petition") raising twenty-three claims for relief. Docket Nos. 43, 45.

In May 2018, the Court granted respondent's motion to dismiss the Amended Petition for failure to exhaust state remedies, finding the only exhausted claim was that "portion of Claim 12 . . . asserting that the improper denial of the Marsden motions denied Wilkins his Sixth Amendment right to effective assistance of counsel." Docket No. 58 at 9. Because the Amended Petition was a "mixed" petition containing both exhausted and unexhausted claims, the Court ordered that Wilkins inform the Court by June 8, 2018, as to how he wished to proceed. Id. at 10, 12-13. Instead, Wilkins filed a motion for reconsideration, stating that Wilkins had "brought to counsel's attention that there are a number of state writs that were not addressed by respondent's motion or brought to the Court's attention by his counsel." Docket No. 61 at 1. The Court construed the motion as a motion for leave to file a motion for reconsideration, granted the motion for leave, and ordered that Wilkins file his motion for reconsideration by July 18, 2018. Docket No. 62. In granting the motion for leave, the Court ordered:

Simply attaching his prior writs and asking for reconsideration will not suffice. Petitioner should cite to the page number and, where available, line numbers of the prior writs and match these to the specific claims in his Amended Petition. The Amended Petition contains twenty-three claims, and the claims in the pro se writs do not map precisely onto these claims. The Court will not engage in guesswork to determine which portions of the writs petitioner believes exhausted his claims here.

Id. at 2.

After seeking and receiving an additional extension of time, Wilkins filed his motion for reconsideration on August 17, 2018. Docket Nos. 63, 69, 70. He attaches fourteen state courtpetitions not previously considered and one state court petition that the Court analyzed in its prior ruling. Respondent filed his opposition and Wilkins filed a reply brief. Docket Nos. 74, 75. In his motion and reply, Wilkins concedes that of the twenty-three claims in the Amended Petition, Claims 10 and 11 are not exhausted and he presents no new state court petitions as to Claims 6, 9, and 13, effectively conceding them as unexhausted. Docket No. 70 at 4; Docket No. 75 at 3. Respondent concedes that a part of Claim 14 and all of Claims 18 and 21 are exhausted. Docket No. 74 at 11, 18, 22-23. Respondent additionally contends that certain claims are "arguably exhaust[ed]" but are nevertheless procedurally defaulted. Id. at 6-8.

II. State Habeas Petitions

Wilkins filed numerous habeas petitions during the state proceedings, both before and after his conviction and sentencing. The petitions that Wilkins attaches to his motion for reconsideration were all filed pro se. Many petitions contain numerous "grounds" for relief that each present different allegations and supporting law. The California Supreme Court denied all of the petitions without narrative explanations.

The following habeas petitions are now before this Court for a determination whether they exhaust the claims Wilkins brings in his Amended Petition:²

S219828 ("Petition #1") filed July 9, 2014. Denied October 1, 2014 (citing In re Clark, 5 Cal. 4th 750, 767-69 (1993); In re Miller, 17 Cal. 2d 745, 735 (1941)). Docket No. 70-1.

S205258 ("Petition #2") filed September 7, 2012. Denied October 17, 2012. Docket No. 70-2; Docket No. 77, Ex. 2.³

S192938 ("Petition #3") filed May 5, 2011. Denied May 11, 2011 (citing People v.Duvall, 9 Cal. 4th 464, 474 (1995); In re Miller, 17 Cal. 2d at 735). Docket No. 70-3; Docket No. 77, Ex. 3.

S200634 ("Petition #4") filed March 5, 2012. Denied March 28, 2012. Docket No. 70-4.

S195594 ("Petition #5") filed August 10, 2011. Denied September 21, 2011 (citing In re Miller, 17 Cal. 2d at 735). Docket No. 70-5; Docket No. 77, Ex. 5.

S199228 ("Petition #6") filed January 6, 2012. Denied February 15, 2012 (citing In re Miller, 17 Cal. 2d at 735). Docket No. 70-6; Docket No. 77, Ex. 6.

S199725 ("Petition #7") filed January 27, 2012. Denied February 15, 2012 (citing Duvall, 9 Cal. 4th at 474; In re Miller, 17 Cal. 2d at 735). Docket No. 70-7; Docket No. 77, Ex. 7.

S232045 ("Petition #8") filed January 25, 2016. Denied April 13, 2016. Docket No. 70-8; Docket No. 77, Ex. 8.

S221347 ("Petition #9") filed September 19, 2014. Denied November 12, 2014 (citing In re Robbins, 18 Cal. 4th 770, 780 (1998); In re Miller, 17 Cal. 2d at 735). Docket No. 70-9; Docket No. 77, Ex. 9.

S222195 ("Petition #10") filed October 27, 2014. Denied December 10, 2014. Docket No. 70-10; Docket No. 77, Ex. 10.

S227880 ("Petition #11) filed July 17, 2015. Denied September 23, 2015. Docket No. 70-11.

S201158 ("Petition #12") filed March 23, 2012. Denied May 9, 2012. Docket No. 70-12; Docket No. 77, Ex. 12.

S204907 ("Petition #13") filed August 22, 2012. Transferred to the Court of Appeal, Division 1, on October 4, 2012. Court of Appeal denied on October 10, 2012. Docket No. 70-13; Docket No. 77, Ex. 13.

S205250 ("Petition #14") filed September 10, 2012. Denied October 17, 2012. Docket No. 70-14; Docket No. 77, Ex. 14.

S205355 ("Petition #15") filed September 12, 2012. Denied October 17, 2012. Docket No. 70-15; Docket No. 77, Ex. 15.

LEGAL STANDARDS

I. Exhaustion of State Court Remedies

Federal courts may not grant a writ of habeas corpus brought by a person in custody pursuant to a state court judgment unless "the applicant has exhausted the remedies available in the courts of the State[.]" 28 U.S.C. § 2254(b)(1)(A). The petitioner must present the highest state court available with a fair opportunity to rule on the merits of each and every claim he seeksto raise in federal court. Id. § 2254(c). The exhaustion requirement is grounded in principles of comity, giving states the first opportunity to correct alleged violations of a prisoner's federal rights. Coleman v. Thompson, 501 U.S. 722, 731 (1991).

A petitioner can satisfy the exhaustion requirement by either: (1) fairly and fully presenting the federal claim to the state's highest court; or (2) showing that no state remedy remains available. Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996); see also Picard v. Connor, 404 U.S. 270, 276-77 (1971). A petitioner fully and fairly presents a claim if he presents the claim: (1) to the correct forum; (2) through the proper vehicle; and (3) by providing the factual and legal basis for the claim. Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005). "Full and fair presentation [] requires a petitioner to present the substance of his claim to the state courts, including a reference to a federal constitutional guarantee and a statement of facts that entitle the petitioner to relief." Scott, 567 F.3d at 582 (citing Picard, 404 U.S. at 278); see also Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc) (holding a federal claim can be fairly presented by citation to state cases analyzing the federal issue). Although a habeas petitioner need not "present to the state courts every piece of evidence supporting his federal claims, [he does need to] provide the state court with the operative facts, that is, 'all of the facts necessary to give application to the constitutional principle upon which [the petitioner] relies.'" Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)).

In considering whether state court remedies have been exhausted, "counseled petitions in state court may, and sometimes should, be read differently from pro se petitions." Peterson, 319 F.3d at 1159. Pro se filings are to be liberally construed. See, e.g., Kyzar v. Ryan, 780 F.3d 940, 948 (9th Cir. 2015) (insufficient-evidence claim was exhausted because the pro se petition to State's highest court argued that the State had failed to prove the elements of the alleged crime, even though the petition did not mention the leading Supreme Court cases on sufficiency of the evidence); Sanders v. Ryder, 342 F.3d 991, 999-1000 (9th Cir. 2003) (ineffective assistance of counsel claim...