Opinion
No. 15-cv-3366 LB
09-23-2015
DERRELL R. DAVIS, Petitioner, v. W. L. MONTGOMERY, Warden, Respondent.
ORDER TO SHOW CAUSE
[Re: ECF Nos. 1, 5, 6]
INTRODUCTION
Derrell R. Davis, an inmate at the Centinela State Prison, filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Mr. Davis consented to proceed before a magistrate judge. (ECF No. 5 at 7, 8.) This order requires a response from respondent and permits Mr. Davis to file a new motion to stay proceedings if he has unexhausted claims he wants to present to the state courts.
Citations are to the Electronic Case File ("ECF"); pin cites are to the ECF-generated page numbers at the tops of the documents.
STATEMENT
Mr. Davis was convicted in Alameda County Superior Court of murder and possession of a firearm by a felon, with sentence enhancements for using a firearm and causing great bodily injury or death, as well as for prior convictions. See People v. Derrell Ronald Davis, Cal. Ct. App. No. A134279, opinion filed April 30, 2014. He was sentenced to 80 years to life in prison.
Mr. Davis appealed. He states that his conviction was affirmed by the California Court of Appeal and that his petition for review is pending in the California Supreme Court. However, the California courts' website for appellate case information, www.appellatecases.courtinfo.ca.gov, indicates that Mr. Davis' petition for review was denied on July 30, 2014. That same website indicates that he has a petition for writ of habeas corpus pending in the California Supreme Court: Mr. Davis' petition for writ of habeas corpus was filed in the California Supreme Court on July 6, 2015 and was still pending as of September 20, 2015.
ANALYSIS
I. REVIEW OF PETITION
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243.
In his federal petition, Mr. Davis asserts the following claims. First, he alleges that his Sixth and Fourteenth Amendment rights to due process and to present a defense were violated when "the trial court failed to give accomplice instruction for Terrell Fisher . . . and then vouch[ed] that the prosecutor was correct in arguing that the fact that no accomplice instruction was given reflected the court's belief that Fisher was not an accomplice." (ECF No. 5 at 9.) Second, Mr. Davis alleges that his Sixth and Fourteenth Amendment rights to effective assistance of counsel were denied "when the trial court did not permit a continuance by counsel" when newly evidence was uncovered three days before trial. (Id. at 10.) He further alleges that a continuance "should have been granted to allow [him] to investigate late discovery" to give meaning to his rights to compulsory process and to confront witnesses. Third, Mr. Davis alleges that his Sixth Amendment right to effective assistance of counsel was violated "when defense counsel failed to make a request on the record to admit the recording" of an interrogation of Terrell Fisher. (Id. at 11.) Fourth, Mr. Davis contends that his Fourteenth Amendment right to due process was violated by the admission of officer Basa's "opinion testimony assessing the weight and credibility of the evidence." (Id. at 12.) Fifth, Mr. Davis alleges that the cumulative effect of these errors resulted in a due process violation. (Id. at 13.) Liberally construed, these claims are cognizable in a federal habeas proceeding and warrant a response.
II. THE MOTION FOR A STAY
Mr. Davis filed a motion for stay and abeyance until his state court remedies are exhausted. (ECF No. 1.) Mr. Davis did not describe the unexhausted claims and did not explain why he did not exhaust state court remedies for those claims before filing his federal petition for writ of habeas corpus.
In Rhines v. Weber, 544 U.S. 269 (2005), the U.S. Supreme Court discussed the stay-and-abeyance procedure for mixed habeas petitions. The Court cautioned district courts against being too liberal in allowing a stay because a stay works against several of the purposes of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") in that it "frustrates AEDPA's objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceeding" and "undermines AEDPA's goal of streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his claims in state court prior to filing his federal petition." Rhines, 544 U.S. at 277. A stay "is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court," the claims are not meritless, and there are no intentionally dilatory litigation tactics by the petitioner. Id. at 277-78. Any stay must be limited in time to avoid indefinite delay. Id. Reasonable time limits would be 30 days to get to state court, as long as necessary in state court, and 30 days to get back to federal court after the final rejection of the claims by the state court. See id. at 278; Kelly v. Small, 315 F.3d 1063, 1071 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007).
There is a second kind of stay, called a King/Kelly stay, that provides an alternative method to deal with a petitioner who has some unexhausted claims he wants to present in his federal habeas action, but quite often results in a statute of limitations problem for the petitioner who uses it. Under the procedure outlined in Kelly v. Small, "(1) a petitioner amends his petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition." King v. Ryan, 564 F.3d 1133, 1134 (9th Cir. 2009) (citing Kelly, 315 F.3d at 1070-71). A petitioner seeking to avail himself of the King/Kelly three-step procedure is not required to show good cause as under Rhines, but rather must show that the amendment of any newly exhausted claims back into the petition satisfies both Mayle v. Felix, 545 U.S. 644, 655 (2005), by sharing a "common core of operative facts" with the claims in the original petition, and Duncan v. Walker, 533 U.S. 167 (2001), by complying with the statute of limitations. King, 564 F.3d at 1141-43. --------
On the record now before the court, Mr. Davis does not qualify for a Rhines stay. The motion for a stay does not identify the unexhausted claims, so the court cannot determine that they are not meritless claims. The motion also does not show good cause for Mr. Davis' failure to exhaust those claims in state court before filing his federal petition for writ of habeas corpus. See Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (upholding denial of stay because petitioner's incorrect "impression" that counsel had raised claims to the California Supreme Court on direct appeal did not establish good cause under Rhines for failure to exhaust claims earlier). The motion for a stay is DENIED without prejudice to Mr. Davis filing a new motion for a stay within twenty days of the date of this order complying with the requirements under Rhines. The motion for a stay should (a) identify all the unexhausted claims and (b) explain why those claims were not presented to the California Supreme Court before this action was filed.
CONCLUSION
For the foregoing reasons,
1. The petition states cognizable claims for federal habeas relief and warrants a response. The court will set a briefing schedule for respondent to show cause why the petition should not be granted as to those claims. That briefing schedule will be adjusted if Mr. Davis files a new motion for a stay.
2. The clerk shall serve by mail a copy of this order, the petition and all attachments thereto upon respondent and respondent's attorney, the Attorney General of the State of California. The clerk shall also serve a copy of this order on petitioner.
3. The clerk also shall serve a copy of the "consent or declination to magistrate judge jurisdiction" form upon respondent and respondent's attorney, the Attorney General of the State of California.
4. Respondent must file and serve upon Petitioner, on or before December 18, 2015, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent must file with the answer a copy of all portions of the court proceedings that have been previously transcribed and that are relevant to a determination of the issues presented by the petition.
5. If Petitioner wishes to respond to the answer, he must do so by filing a traverse with the Court and serving it on Respondent on or before January 15, 2016.
6. Petitioner's motion for a stay and abeyance is DENIED. (ECF No. 1.) If petitioner wants a stay of this action so that he may exhaust state court remedies as to one or more claims, he must file his motion for a stay within twenty days of the date of this order. Petitioner may choose instead to simply dismiss the unexhausted claims and proceed with consideration of his other claims.
7. Petitioner is responsible for prosecuting this case. Petitioner must promptly keep the Court informed of any change of address and must comply with the Court's orders in a timely fashion.
8. Petitioner is cautioned that he must include the case name and case number for this case on the first page of any document he submits to the Court for consideration in this case.
7. Petitioner's in forma pauperis application is GRANTED. (ECF No. 6.)
IT IS SO ORDERED. Dated: September 23, 2015
/s/_________
LAUREL BEELER
United States Magistrate Judge