Wilkins v. Macomber

KEENAN G. WILKINS, Plaintiff, v. JEFF MACOMBER, Defendant.

Case No. 16-cv-00221-SI

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

February 10, 2021

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION FOR RECONSIDERATION AND GRANTING PETITIONER'S MOTION FOR LEAVE TO FILE A SECOND AMENDED PETITION.

Re: Dkt. Nos. 120, 123

Keenan Wilkins, a/k/a Nerrah Brown, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction from the Alameda County Superior Court. On May 8, 2018 the Court granted respondent's motion to dismiss for failure to exhaust state court remedies. Mtn. to Dismiss (Dkt. Nos. 53); Order Granting Mtn. to Dismiss (Dkt. No. 58). The Court subsequently granted in part and denied in part Mr. Wilkins' first motion for reconsideration. Order Re: Mtn. for Reconsideration (Dkt. No. 79). The Court now addresses Mr. Wilkins' second motion for reconsideration and motion for leave to file a second amended petition. Second Mtn. for Reconsideration (Dkt. No. 120); Motion to File Second Amended Petition (Dkt. No. 123).

MOTION TO FILE SECOND AMENDED PETITION

In opposition to Mr. Wilkins' motion for reconsideration, respondent questions whether Mr. Wilkins may file a second amended petition ("second amended petition") - a threshold issue. Opposition Re: Second Mtn. for Reconsideration (Dkt. No. 122 at 8¹). Following the receipt of this objection, Mr. Wilkins filed a formal motion for leave to file a second amended petition. Motion to File Second Amended Petition (Dkt. No. 123). The Court agrees with Mr. Wilkins' argument: appointment of new counsel, as was the case here, necessarily indicates an amended petition may be filed to correct the errors of prior counsel. Id. at 3-4.

MOTION FOR RECONSIDERATION

BACKGROUND

I. Procedural Background

Mr. 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. Mtn. to Dismiss (Dkt. No. 53 at 1-2). On December 26, 2012, the superior court sentenced him to 100 years to life in prison. Id. at 2; MPA Re: First Amended Petition (Dkt. No. 45 at 20.1)

Mr. Wilkins, through appointed counsel, filed a direct appeal of his conviction. On April 28, 2015, the California Court of Appeals affirmed the judgment of conviction. Mtn. to Dismiss (Dkt. No. 53 at 2). Wilkins then filed a petition for review, which the California Supreme Court denied. Id. at Ex. B, C. Both before and after his conviction, Mr. Wilkins filed multiple petitions for writs of habeas corpus in state court. Mr. Wilkins filed the instant action of federal habeas corpus pro se in January 2016, bringing twenty-three claims for relief. Petition (Dkt. No. 1). In August 2016, Mr. Wilkins, still acting pro se, amended the petition. Amendment to Petition (Dkt. No. 15). In January 2017, this Court granted Mr. Wilkins' request for counsel and James Vaughns was appointed in February 2017. Order Granting Request for Counsel (Dkt. No. 34); Order for CJA Appointment (Dkt. No. 36). In May 2017, Mr. Vaughns filed a new amended petition (the "first amended petition") raising the same twenty-three claims for relief. First Amended Petition (Dkt. No. 43); MPA to First Amended Petition (Dkt. No. 45).

In May 2018, the Court granted respondent's motion to dismiss the first amended petition for failure to exhaust state remedies, finding the only exhausted claim was the "portion of Claim 12 ... asserting that the improper denial of the Marsden motions denied Wilkins his Sixth Amendment right to effective assistance of counsel." Order Granting Mtn. to Dismiss (Dkt. No. 58 at 9). Because the first amended petition was a "mixed" petition containing both exhausted and unexhausted claims, the Court ordered Mr. Wilkins to inform the Court how he wished to proceed by June 8, 2018. Id. at 10, 12-13. Instead, Mr. Wilkins, through his first appointed counsel, Mr. Vaughns, filed an initial motion for reconsideration, stating Mr. 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." June Mtn. for Reconsideration (Dkt. No. 61 at 1). The Court construed this as a motion for leave to file a motion for reconsideration, granted the motion for leave, and ordered Mr. Wilkins file his motion for reconsideration. Order Granting Leave to File Mtn. for Reconsideration (Dkt. No. 62).

On August 17, 2018, Mr. Wilkins filed his first motion for reconsideration. First Mtn. for Reconsideration (Dkt. No. 70). In his motion and reply, Mr. Wilkins conceded that of the twenty-three claims in the first amended petition, Claims 10 and 11 were not exhausted and he presented no new state court petitions as to Claims 6, 9, and 13, effectively conceding them as unexhausted in relation to the first motion for reconsideration. Id. at 4; Reply Re: First Mtn. for Reconsideration (Dkt. No. 75 at 3). Respondent conceded part of Claim 14 and all of Claims 18 and 21 are exhausted. Oppo. Re: First Mtn. for Reconsideration (Dkt. No. 74 at 11, 18, 22-23). Additionally, this Court found certain claims are "arguably exhaust[ed]" but are nevertheless procedurally defaulted. Id. at 6-8.

In February 2019, Mr. Wilkins' appointed counsel, Mr. Vaughns, was replaced at Mr. Wilkins' request. Order Granting Mtn. for Sub. Of Counsel (Dkt. No. 87); Order for CJA Appointment (Dkt. No. 92). On September 2, 2020, Mr. Wilkins' newly appointed counsel, Ethan Balogh, filed a second amended petition citing eleven state court petitions and thirty-five state court docket sheets which prior counsel failed to unearth. Second Amended Petition (Dkt. No. 115); Petitioner Declaration (Dkt. No. 117). On October 20, 2020, Mr. Wilkins filed anothermotion for reconsideration, which is now before the Court. Second Mtn. for Reconsideration (Dkt. No. 120).

Respondent objects to Mr. Wilkins' filing of a second amended petition, arguing Mr. Wilkins failed to obtain leave to do so from the Court. Oppo Re: Second Mtn. for Reconsideration (Dkt. No. 122 at 8, 14-15, 17). On November 23, 2020, Mr. Wilkins filed a formal motion for leave to file a second amended petition as well as a reply to the respondent's opposition to the second motion for reconsideration. Mtn. for Leave to File Second Amended Petition (Dkt. No. 123); Reply Re: Second Mtn. for Reconsideration (Dkt. No. 125). The motion for reconsideration and motion for leave to file a second amended petition are now fully briefed and at issue.

II. State Habeas Petitions

Mr. Wilkins filed numerous habeas petitions during the state proceedings, before and after his conviction and sentencing. Mr. Wilkins' appointed counsel attached state court petitions to the initial motion for reconsideration as well as the current motion for reconsideration. The state court petitions contained numerous "grounds" for relief - each presenting different allegations and supporting law. The California Supreme Court denied all of the petitions without narrative explanations.

Mr. Wilkins has now presented to this Court, through multiple motions, filings, and counsels, upwards of fifty state court petitions. Listed below are only the state court petitions specific to this motion.²

S192938 ("Petition #1") filed May 5, 2011. Denied May 11, 2011 (Citing People v. Duvall, 9 Cal. 4th 464, 474 (1995); In re Miller, 17 Cal. 2d 734, 735 (1941). Dkt. No. 70-3, Dkt. No. 77, Ex. 3.

S192859 ("Petition #2") filed May 5, 2011. Denied May 18, 2011. Dkt. Nos. 115 at 4, 117-5.S200168 ("Petition #3") filed February 14, 2012. Transferred to the Court of Appeal, First Appellate District, February 23, 2012. Dkt. Nos. 115 at 5, 117-9.

S200734 ("Petition #4") filed March 9, 2012. Denied February 29, 2013. Dkt. Nos. 115 at 5, 117-11.

S190870/A131680 ("Petition #5") filed February 24, 2011. Denied March 30, 2011. Dkt. Nos. 115 at 4, 117-4.

S200634 ("Petition #6") filed March 5, 2012. Denied March 28, 2012. Dkt. No. 70-4.

S188689 ("Petition #7") filed December 6, 2011. Denied April 27, 2011. Dkt. No. 117-2.

S199228 ("Petition #8") filed January 6, 2012. Denied February 15, 2012. Dkt. No. 117-8.

S232045 ("Petition #9") filed January 25, 2016. Denied April 13, 2016. Dkt. No. 70-8.

S227880 ("Petition #10") filed July 17, 2015. Denied September 23, 2015. Dkt. NO. 70-11.

S222195 ("Petition #11") filed October 27, 2014. Denied December 10, 2014. Dkt. No. 70-10.

S201158 ("Petition #12") filed March 23, 2012. Denied May 9, 2012. Dkt. No. 70-12.

S226831 ("Petition #13") 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)). Dkt. No. 117-12.

S253692 ("Petition #14") filed January 19, 2019. Denied May 15, 2019. Dkt. No. 117-14.

S252938 ("Petition #15") filed December 6, 2018. Denied May 15, 2019. Dkt. No. 117-13.

S195594 ("Petition #16") filed August 10, 2011. Denied September 21, 2011. Dkt. No. 117-6.

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 seeks to 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 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 ...