Stamps v. Cate, No. 3:2011cv02048 - Document 20 (S.D. Cal. 2012)
Court Description: ORDER denying as moot 6 Motion for Stay and Abeyance, denying as moot 16 Motion for Extension of Time to File a Reply. The Court sets the following briefing schedule regarding Respondent's motion to dismiss the petition as untimely. Respon dent may file a motion to dismiss on or before August 15,2012. Petitioner may file a response to Respondent's motion on or before September 7, 2012. Respondent may file a reply on or before September 21, 2012. Signed by Magistrate Judge William McCurine, Jr on 7/30/12. (All non-registered users served via U.S. Mail Service)(kaj)
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Stamps v. Cate Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TERRENCE MAURICE STAMPS, CASE NO. 11-cv-2048-LAB (WMc) Petitioner, 12 ORDER: (1) DENYING PETITIONER’S MOTION FOR STAY AND ABEYANCE; AND (2) DENYING PETITIONER’S MOTION FOR AN EXTENSION OF TIME vs. 13 14 15 MATTHEW CATE, Secretary, California Department of Corrections and Rehabilitation, Respondent. (ECF Nos. 6, 16) 16 17 I. INTRODUCTION 18 Terrence Maurice Stamps (hereinafter “Petitioner”), a state inmate proceeding pro se, filed a 19 Petition for Writ of Habeas Corpus on September 2, 2011, and a Request for Stay and Abeyance on 20 February 15, 2012.1 [ECF Nos. 1 and 6.] Connie Gibson,2 Warden at the Corcoran California State 21 Prison (hereinafter “Respondent”), filed a Response in Opposition to Motion for Stay. [ECF No. 22 10.] Respondent asked the Court to deny Petitioner’s stay request. [ECF No. 10.] Petitioner moved 23 for an extension of time to file a reply to Respondent’s opposition on May 17, 2012 and ultimately 24 filed his reply on June 7, 2012. [ECF Nos. 16, 18.] 25 /// 26 1 27 28 On September 16, 2011, the district court dismissed the petition without prejudice for failure to pay the filing fee and notified Petitioner his petition contained both exhausted and unexhausted claims. 2 The Court sua sponte substituted Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation, as Respondent. [ECF No. 19.] -1- 11cv2048-LAB (WMc) Dockets.Justia.com 1 II. STATEMENT OF FACTS 2 Jury Trial 3 On December 19, 2008, a jury convicted Petitioner of first degree murder and found he 4 discharged a firearm and caused great bodily harm or death. (Lodg. No. 1.) The trial court 5 sentenced Petitioner to an indeterminate term of fifty years to life imprisonment. (Lodg. No. 1.) 6 Direct Appeal 7 Petitioner filed a direct appeal to the California Court of Appeal, Fourth District. (Lodg. No. 8 3.) The California Court of Appeal denied the appeal on June 24, 2010. (Lodg. No. 4.) Petitioner 9 then petitioned the California Supreme Court for review. (Lodg. No. 5.) Petitioner claimed the trial 10 court failed to instruct the jury on imperfect self-defense. (Lodg. No. 5.) The California Supreme 11 Court denied review on September 1, 2010. (Lodg. No. 6.) 12 Federal Habeas Corpus Petition 13 On September 2, 2011, Petitioner filed the habeas corpus petition now before this Court. 14 [ECF No. 1.] The petition contains two claims. [ECF No. 1.] First, Petitioner presents the same 15 failure to instruct claim he presented on direct review to the California Supreme Court. [ECF No. 1 16 at p. 6.] Second, Petitioner claims ineffective assistance of counsel because his trial counsel failed to 17 request an instruction on imperfect self-defense.[ECF No. 1 at p. 9.] 18 On September 16, 2011, the Court dismissed the case without prejudice for Petitioner’s 19 failure to pay the filing fee and notified Petitioner that he filed a petition containing both exhausted 20 and unexhausted claims because he did not allege exhaustion of the ineffective assistance of counsel 21 claim. [ECF. No. 3 at p.5.] 22 Petitioner’s Petition to the California Supreme Court 23 On December 19, 2011 Petitioner filed a habeas corpus petition at the California Supreme 24 Court. (Lodg. No. 7.) Petitioner presented the same ineffective assistance of counsel claim found in 25 his federal petition. (Lodg. No. 7.) On April 18, 2012, the California Supreme Court denied the 26 petition without citation. [ECF No. 18 at p. 9.] 27 Petitioner’s Request for Stay and Abeyance 28 On February 15, 2012, Petitioner filed a Request for Stay and Abeyance. [ECF No. 6.] In -2- 11cv2048-LAB (WMc) 1 the request, Petitioner stated he intended to exhaust the second claim. [ECF No. 4 at 1.] Petitioner 2 stated his appellate counsel failed to include the ineffective assistance of counsel claim on direct 3 review. [ECF No. 6 at p. 1.] On March 26, 2012, Respondent opposed Petitioner’s request for a stay. 4 [ECF No. 10.] 5 On June 7, 2012, Petitioner replied to Respondent’s opposition. [ECF No. 18.] 6 In his reply, Petitioner stated his ineffective assistance of counsel claim was now exhausted because 7 the California Supreme Court denied his petition on April 18, 2012. [ECF No. 18.] Petitioner 8 contends this claim should not be dismissed and should relate back to his exhausted failure to 9 instruct claim. [ECF No. 18 at 2.] 10 III. ARGUMENTS 11 Petitioner seeks a stay and abeyance of his petition in order to exhaust a pending claim 12 before the California Supreme Court. [ECF No. 6 at 1.] Petitioner cites Rhines v. Weber, 544 U.S. 13 269 (2005), to support his claim. [ECF No. 6 at 2.] Petitioner alleges his appellate counsel’s failure 14 to raise the ineffective assistance of trial counsel claim prevented him from exhausting these claims. 15 [ECF No. 6 at 1-2.] 16 Respondent opposes a stay of Petitioner’s habeas corpus claims under Rhines because 17 Petitioner did not demonstrate good cause or show the potential merit of his claims. [ECF No. 10 at 18 6.] Respondent argues Petitioner failed to demonstrate good cause because Petitioner’s argument 19 regarding his appellate counsel’s alleged failure lacks merit. [ECF No. 10 at 6.] Respondent also 20 argues Petitioner cannot establish his claim’s potential merit because the California Court of Appeal 21 concluded his trial counsel made a tactical decision not to pursue imperfect self-defense and thus 22 rejected his claim. [ECF No. 10 at 6.] 23 Additionally, Respondent raises Petitioner’s potential untimeliness issues under AEDPA, 24 citing Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) and King v. Ryan, 564 F.3d 1133 (9th Cir. 25 2009). [ECF No. 10 at 6-7.] Respondent notes that, if Petitioner’s unexhausted ineffective assistance 26 of counsel claim does not relate back to the exhausted failure to instruct claim, he must comply with 27 the statute of limitations of the unexhausted claim. [ECF No. 10 at 6-7.] Petitioner would be unable 28 to comply because, Respondent contends, the statute of limitations expired on November 30, 2011. -3- 11cv2048-LAB (WMc) 1 [ECF No. 11 at 6.] Respondent also argues Petitioner’s return to the state courts could be futile 2 because of the nature of Petitioner’s ineffective assistance of counsel claim. [ECF No. 10 at 7.] 3 Petitioner has been aware of the factual basis of the second claim since trial or, at least, when 4 appellate counsel filed the petition for review. Thus, Respondent contends, the California Supreme 5 Court would likely find Petitioner’s claim untimely. [ECF No. 10 at 7.] Accordingly, Respondent 6 asks the Court to deny Petitioner’s stay. 7 In his reply, Petitioner states his ineffective assistance of counsel claim was formally 8 exhausted as of April 18, 2012, when the California Supreme Court denied his habeas petition. 9 [ECF No. 18 at 1.] Petitioner also argues his ineffective assistance of counsel claim should relate 10 back to his exhausted failure to instruct claim because the two claims are sufficiently related or 11 intertwined. [ECF No. 18 at 3-4.] Petitioner argues he is entitled to equitable tolling because he, as a 12 layman, was unfamiliar with both the statutory deadline and the factual predicate of the ineffective 13 assistance of counsel claim. [ECF No. 18 at 6.] While Respondent and Petitioner submitted their 14 respective Opposition and Reply, the California Supreme Court denied Petitioner’s unexhausted 15 claim. [ECF No. 18 at p. 9.] 16 IV. LEGAL STANDARD 17 Exhaustion 18 State prisoners must exhaust each constitutional claim in state court before they seek federal 19 relief. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 518 (1982); Insyxiengmay v. 20 Morgan, 403 F.3d 657, 667 (9th Cir. 2005). Thus, state prisoners cannot seek federal relief until “it 21 appears that . . . the applicant has exhausted the remedies available in the courts of the State.” 28 22 U.S.C. § 2254(b)(1)(A). Exhausting state remedies typically requires the petitioner to present his 23 claims to the state’s highest court. This can be accomplished either on direct review or collateral 24 review. See Reiger v. Christensen, 789 F.2d 1425, 1427–28 (9th Cir. 1986). 25 State prisoners properly exhaust a constitutional claim when they allow state courts a “fair 26 opportunity” to decide the claim. Baldwin v. Reese, 541 U.S. 27, 29 (2004); Picard v. Connor, 404 27 U.S. 270, 276 (1971); Lounsbury v. Thompson, 374 F.3d 785, 787 (9th Cir. 2004). Thus, the state 28 prisoner must set forth the operative facts and federal legal theory underlying a constitutional claim. -4- 11cv2048-LAB (WMc) 1 Gray v. Netherland, 518 U.S. 152, 162–63 (1996); Picard, 404 U.S. at 275; Kelly v. Small, 315 F.3d 2 1063, 1069 (9th Cir. 2003), overruled on other grounds by, Robbins v. Carey, 481 F.3d 1143 (9th 3 Cir. 2007). Also, the federal claim and the facts supporting it must be at least substantially 4 equivalent to a claim presented in state court. Vasquez v. Hillery, 474 U.S. 254, 258 (1986); 5 Pappageorge v. Summer, 688 F.2d 1294, 1295 (9th Cir.1982). 6 The California Constitution provides that the superior courts, courts of appeals, and the 7 Supreme Court each have original jurisdiction in habeas corpus proceedings. Cal. Const. art. VI, § 8 10. A California state prisoner may file an original habeas petition in each of the three courts, and 9 each court may exercise its original jurisdiction. See Gaston v. Palmer, 417 F.3d 1030, 1036 (9th 10 Cir. 2005) (citing In re Clark, 5 Cal. 4th 750 (1993)). The Ninth Circuit construes “postcard 11 denials” (denials without comment or citation) as decisions on the merits. See Gaston, 417 F.3d at 12 1038; Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir. 1992). Therefore, federal courts consider a 13 claim exhausted when the California Supreme Court denies the claim with comment or citation. See 14 Chambers v. McDaniel, 549 F.3d 1191, 1197–98 (9th Cir. 2008); Harris v. Superior Court, 500 F.2d 15 1124, 1128–29 (9th Cir. 1974). 16 AEDPA Time Limit 17 Congress, through AEDPA, created a one-year statute of limitations for state prisoners to file 18 a federal habeas petition. 28 U.S.C. § 2244(d). Untimely constitutional claims do not receive 19 judicial review. 28 U.S.C. § 2244(d). 20 In addition, a district court can sua sponte raise the statute of limitations issue when the 21 habeas corpus petition is obviously untimely on its face. Herbst, 260 F.3d 1039, 1042. However, 22 the court can only dismiss the petition after it “provides the petitioner with adequate notice and an 23 opportunity to respond.” Id. at 1043; see also Day v. McDonough, 547 U.S. 198, 210 (2006). 24 V. DISCUSSION 25 Analysis of the Motion for an Extension of Time 26 Petitioner filed a motion for an extension of time to file a reply to Respondent’s opposition. 27 Petitioner improperly described his motion as a request for “extending the time for filing his 28 objections to the Magistrate’s Report and Recommendations.” [ECF No. 16, p. 1.] There is no -5- 11cv2048-LAB (WMc) 1 Report and Recommendation on the docket to which Petitioner could file objections. Based on the 2 substance and timing of the motion, the Court construes Petitioner’s request as one to extend the 3 deadline for filing a reply to Respondent’s opposition. In any event, Petitioner subsequently filed his 4 reply and the Court has considered it in ruling on the motion to stay. 5 Accordingly, Petitioner’s motion for an extension of time to file a reply is DENIED as moot. 6 Analysis of the Motion to Stay 7 The instant petition presents two claims: (1) failure of the trial court to instruct the jury on all 8 theories of manslaughter; and (2) ineffective assistance of trial counsel. 9 Petitioner exhausted the failure to instruct claim because he petitioned the California 10 Supreme Court to review the claim on direct review of his appeal. (Lodg. No. 5.) Petitioner also 11 exhausted the ineffective assistance of trial counsel claim because he presented it in a habeas 12 petition to the California Supreme Court, which denied the petition on April 18, 2012. [ECF No. 18 13 at p. 9.] 14 Based on the record presently before the Court, Petitioner presented both of the instant 15 claims before the California Supreme Court. Petitioner himself stated in his Reply to Respondent’s 16 Opposition that his ineffective assistance of counsel claim was exhausted as of April 18, 2012. [ECF 17 No. 18 at p. 1.] Accordingly, Petitioner’s motion to stay and abey his petition to exhaust the 18 ineffective assistance of counsel claim is moot because this claim was exhausted during the 19 pendency of the motion. 20 Accordingly, Petitioner’s motion to stay and abey is DENIED as moot. 21 Timeliness of the Petition 22 1. Parties’ Arguments Raise AEDPA Timeliness Issues 23 In his Request for Stay and Abeyance, Petitioner claims his appellate counsel’s failure to raise 24 the ineffective assistance of counsel claim on direct review prevented him from exhausting his 25 claims and the ineffective assistance of counsel claim should relate back to his exhausted failure to 26 instruct claim. [ECF No. 6 at 1-2.] In opposition, Respondent acknowledges Petitioner’s 27 unexhausted claim may or may not relate back to the exhausted claim. [ECF No. 10 at 6.] 28 Respondent notes the ineffective assistance of counsel claim could require the development of -6- 11cv2048-LAB (WMc) 1 different facts from the exhausted failure to instruct claim. [ECF No. 10 at 7.] Respondent argues 2 that, if the unexhausted claim does not relate back to the exhausted claim, Petitioner will be unable 3 to comply with the AEDPA statute of limitations. [ECF No. 10 at 6-7.] Respondent contends the 4 statute of limitations expired on November 30, 2011. [ECF No. 11 at 6.] 5 2. AEDPA Requires Petitioners to File Federal Claims Within One Year Statute of 6 Limitations Unless Tolling Allowed 7 Absent tolling, state prisoners must file their federal habeas corpus petition before the one- 8 year AEDPA statute of limitations period ends. 28 U.S.C. § 2554(d)(1). Federal courts cannot 9 review untimely habeas corpus claims. 28 U.S.C. § 2244(d). Here, Respondent argues Petitioner’s 10 ineffective assistance of trial counsel claim may be untimely under the one-year AEDPA statute of 11 limitations. [ECF No. 10 at 6-7.] However, neither the Petitioner, nor the Respondent received a 12 full and fair chance to brief this issue. 13 Accordingly, the Court sets the following briefing schedule regarding Respondent’s motion to 14 dismiss the petition as untimely. Respondent may file a motion to dismiss on or before August 15, 15 2012. Petitioner may file a response to Respondent’s motion on or before September 7, 2012. 16 Respondent may file a reply on or before September 21, 2012. 17 18 VII. CONCLUSION For all the foregoing reasons, the Court DENIES Petitioner’s motions as moot. 19 IT IS SO ORDERED. 20 Date: July 30, 2012 21 22 23 Hon. William McCurine, Jr. Magistrate Judge United States District Court 24 25 26 27 28 -7- 11cv2048-LAB (WMc)
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