Williams v. Neuschmid

ORDER AND FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE

Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court are respondent's motion to dismiss and petitioner's motion for discovery and for personnel records. ECF Nos. 16, 23. In an unsolicited surreply opposing the motion to dismiss, petitioner requests a stay of these proceedings pending exhaustion of state court remedies. ECF No. 21 at 2. For the reasons stated below, petitioner's motion for discovery will be denied. In addition, the undersigned will recommend that petitioner's motion to stay these proceedings be denied and that respondent's motion to dismiss be granted. I. BACKGROUND

On March 4, 2015, petitioner was convicted of corporal injury to a spouse or cohabitant in violation of California Penal Code § 273.5(a) and of assault causing great bodily injury in violation of California Penal Code § 243(d). See ECF No. 18-1 at 1. Enhancements charged, including one for a previous conviction, were found to be true. See id. On April 24, 2015,

petitioner was sentenced to serve nineteen years in state prison. See ECF No. 18-1 at 1-2.

II. PROCEDURAL HISTORY

A. State Post-Conviction Proceedings^[1]

Petitioner appealed his conviction to the California Court of Appeal. The appeal appears to have raised two claims:^[2] (1) that the trial court erred in denying his motion for a mistrial based upon juror misconduct, and (2) that the trial court erred when it failed to instruct the jury sua sponte on the elements of stalking. See ECF No. 18-2 at 2. In March 2017, the state appellate court affirmed the trial court judgment. See id. at 1, 9. On or around April 20, 2017, petitioner filed a petition for review in the California Supreme Court. ECF No. 18-3. The petition presented a single claim: that the trial court had denied petitioner his right to an impartial jury when it failed to grant his motion for a mistrial based upon juror misconduct. See id. at 15-27. On May 24, 2017, the California Supreme Court summarily denied the petition for review. ECF No. 18-4.

Respondent represents here that petitioner filed a single application for state collateral relief, a habeas petition that was submitted to the superior court.^[3] See ECF No. 16 at 2, n.1. Petitioner has provided a copy of the superior court's decision denying the petition, which is

dated January 8, 2018.^[4] See ECF No. 19 at 7-9. Petitioner did not seek further review of his collateral claims.

B. Federal Proceedings

On April 23, 2018, the petition was docketed. ECF No. 1. It presents the following claims: (1) prosecutorial misconduct for withholding evidence that Sacramento County Police Officer John Tennis, the key prosecution witness, had a domestic violence charge in his background; (2) unconstitutional failure to disclose the facts that in 2014, around the time Officer Tennis appeared at petitioner's preliminary hearing, he had been arrested for a DUI and that in 2017, the Sacramento County Police Department terminated him; (3) improper imposition of one of the sentencing enhancements given that the words “serious” and “great” essentially connote the same degree of bodily injury; (4) failure to submit to a jury the factual determination that any charged offenses were serious ones; and (5) trial court failure to properly assess the violent and/or felony nature of petitioner's two strike priors. Id. at 5-12.

The petition itself acknowledges that the alleged withholding of evidence, as well as Claims Three and Four, have not previously been presented to any court. See ECF No. 1 at 13. Petitioner states that these claims were not previously presented due to “lack of knowledge and resources.” See id.

On October 11, 2019, respondent filed the instant motion to dismiss and lodged related state court documents. ECF Nos. 16, 18. Petitioner's opposition was filed on November 1, 2019. ECF No. 19. Respondent filed a reply on November 15, 2019, and on December 4, 2019, petitioner filed a document that the court has construed as a surreply. See ECF Nos. 20, 21.

III. MOTION TO DISMISS

Respondent contends that the only claim petitioner has presented to the California Supreme Court was his direct appeal issue regarding juror misconduct. Because none of the

claims included in the federal petition were ever presented to the state's highest court, respondent argues that the petition is wholly unexhausted and therefore must be dismissed.

In opposition, petitioner relies primarily on the habeas petition that was presented to the Sacramento County Superior Court. He attaches a copy of the first page of that petition, along with the order denying relief. See ECF No. 19 at 6-9. These attachments show that petitioner raised two claims: (1) that the prosecutor failed to disclose Officer Tennis' 2012 domestic violence charge and his 2014 DUI, and (2) that new evidence of Officer Tennis's involvement in a 2016 fatal shooting should be considered by the court. See id. at 7-9. Petitioner also argues to this court that both his trial and appellate counsel provided ineffective assistance. Id. at 3-5. He attaches a letter from appellate counsel informing him that he is “free to pursue a federal district court petition for writ of habeas corpus.” Id. at 10.

Respondent's reply reiterates that none of the federal claims were included in the petition for review, nor presented in a habeas petition to the California Supreme Court, and therefore none are exhausted. Petitioner's unauthorized surreply does not substantively contest non-exhaustion. Instead, petitioner argues that all five claims in the federal petition are true; that his allegations about Officer Tennis are true; that the prosecution withheld exculpatory evidence; and that his sentence was improperly calculated. Petitioner also asks that the court order a stay of these proceedings, presumably so he can return to state court and exhaust the claims in the instant petition. See ECF No. 21 at 2.

IV. DISCUSSION

A. Applicable Law

A state prisoner must exhaust his state court remedies before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1); see Cullen v. Pinholster, 563 U.S. 170, 182 (2011); Peterson v. Lampert, 319 F.3d 1153, 1155 (9th Cir. 2003) (en banc). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985).

B. Analysis

1. The Federal Petition Is Wholly Unexhausted

Respondent is correct that petitioner's failure to have presented the claims of the federal petition to the California Supreme Court renders the petition wholly unexhausted. Petitioner does not dispute that his only California Supreme Court challenge to his conviction was the petition for review. It raised a single claim, juror misconduct, that is not included in the federal petition. The California Supreme Court clearly was not provided a full and fair opportunity to consider the five claims of the federal petition, none of which were presented to it. Accordingly, the petition is wholly unexhausted and must be dismissed. See Jimenez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001); Greenawalt v. Stewart, 104 F.3d 1268, 1274 (9th Cir. 1997).

2. A Stay is Not Appropriate

Petitioner's request for a stay is included in an unauthorized surreply rather than being properly presented by motion, but the undersigned will nonetheless consider the matter. Rhines v. Weber, 544 U.S. 269 (2005) governs stays of petitions that are wholly unexhausted. See Mena v....