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Howard v. Ornoski

United States District Court, E.D. California
Feb 28, 2006
Case No. CV F-93-5726-REC (E.D. Cal. Feb. 28, 2006)

Opinion

Case No. CV F-93-5726-REC.

February 28, 2006


ORDER RE: FILING AMENDED PETITION AND HOLDING FEDERAL PROCEEDINGS IN ABEYANCE


This matter is before the Court on the motion of Petitioner Albert Cecil Howard ("Howard") for an order permitting him to back-file his First Amended Petition nunc pro tunc as of April 23, 1997, and then to hold federal proceedings in abeyance. The Honorable Robert E. Coyle, presided over the proceedings. Respondent Steven W. Ornoski, as Acting Warden of San Quentin State Prison (the "Warden") opposes the motion. Howard was represented at the hearing by Assistant Federal Defender Joseph Schlesinger; the Warden was represented by Deputy Attorney General Brian G. Smiley. The hearing originally was set for December 12, 2005. Following the Court's consideration of a request for a continuance filed by the Warden, the hearing was continued to January 30, 2006. The Warden filed his opposition to the motion on January 16, 2006 and Howard filed his reply on January 23, 2006. The January 30, 2006 hearing was continued to February 13, 2006.

I. Procedural History.

The pertinent procedural history for this case dates back over 15 years. During direct appeal proceedings in the California Supreme Court, Howard filed his initial state habeas petition on June 22, 1990. That petition was denied on December 11, 1991. On February 27, 1992, Howard's direct appeal proceedings were concluded when the California Supreme Court affirmed his murder conviction and death sentence.

The petition was denied without explanation. In addition, in the same order, Howard's applications for an order to preserve testimony and for appointment of counsel to represent him on state habeas were denied.

While the appellate decision affirmed Howard's murder conviction and death sentence, one of the special circumstances and two other convictions were set aside.

Howard initiated federal proceedings in this Court on October 25, 1993 with a request for appointment of counsel and a stay of execution of his sentence. The Court appointed George Holt to represent Howard on March 4, 1994. Because Mr. Holt was overwhelmed with the scope and breadth of representing Howard in these federal proceedings, on July 11, 1995, the California Appellate Project ("CAP"), was appointed co-counsel. On November 17, 1995, Mr. Holt substituted out and CAP, by Joseph Schlesinger, substituted in as sole counsel. Finding that all files had been delivered to CAP as of April 15, 1996, the Court, on May 9, 1996, ordered CAP to file Howard's federal petition by October 24, 1996.

Four months after the Court established this due date, CAP, on September 18, 1996 requested authorization to conduct investigation and consult with experts. Over the Warden's objection, the Court considered and ultimately granted (in part) the funding request under seal. The Court found, however, that the timing of the investigative funding application was unacceptable. Because CAP failed to keep the Court apprised of its litigation efforts and the need for an extension to file the petition, the Court imposed a minimal amount of sanctions, $500. After the sanctions order was issued, CAP immediately applied for and was granted and extension to file Howard's petition, up to and including March 14, 1997. Contrary to the Warden's opposition papers in the present motion, at no time did the Court find dilatory tactics on the part of Howard or his counsel in the development of his federal claims. Rather, it was the inconsiderate omission of keeping the Court apprised that provoked the sanctions.

The amount set did not require a report to the California State Bar.

In fact, the application for an extension of time requested up to and including February 14, 1997 to file the petition. The Court provided an extra month, to March 14, 1997.

Howard timely filed his original federal petition on March 14, 1997, and as part of his prayer for relief, requested that the federal proceedings be held in abeyance so he could pursue state remedies on additional federal claims discovered during preparation of the petition. The original federal petition was reputed to contain only exhausted claims. On April 10, 1997, the Warden opposed Howard's abeyance request because the additional, unexhausted claims had not been identified, and thus, the Warden could not evaluate whether they were cognizable federal claims. Within two weeks, Howard responded by filing his state exhaustion petition in the California Supreme Court on April 23, 1997. This date is important, because it is the date on which Howard now claims that he could have filed a complete petition in federal court, which would have been comprised of his exhausted claims, as alleged in the original March 14, 1997 petition, and his newly discovered, unexhausted claims presented to the California Supreme Court.

On May 30, 1997 the Court ordered the federal proceedings held in abeyance until the California Supreme Court completed its review of the state exhaustion petition, a result the Warden conceded at the time was "a fair result." Based on the Warden's arguments, prior to entering that order, the Court evaluated the allegations in the state exhaustion petition for potential procedural default infirmities to determine whether proceeding with the state exhaustion process was futile. The Court specifically determined that the only basis for a state procedural default, if any, would be untimeliness. In addition, the Court observed that Howard made the necessary allegations in his state exhaustion petition to address the issue of timeliness under applicable state rules. Because of these findings, the Court concluded that abeyance of federal proceedings was supported and that Howard's state exhaustion petition was not futile. Significantly, the Court also observed that under prevailing Ninth Circuit authority, any state procedural default predicated on untimeliness would not be adequate to bar federal review because a timeliness default prior to the decision in In re Clark, 5 Cal. 4th 750 (1993) is not an adequate state ground to bar federal review on the merits. Morales v. Calderon, 85 F.3d 1387, 1391 (9th Cir. 1996); Calderon v. United States Dist. Ct. (Bean), 96 F.3d 1126, 1131 (9th Cir. 1996). The Court nonetheless abstained from concluding the California Supreme Court actually would find an untimeliness default since it would be improper for this Court to interfere with the state process or usurp state jurisdiction.

In making this finding, the Court discounted the potential of a procedural default based on failure to raise see In re Dixon the claims in the first instance on direct appeal, see In re Dixon, 41 Cal. 2d 756, 760 (1953), or an attempt to raise a claim on state habeas that had previously been rejected on direct appeal, see In re Waltreus, 62 Cal.2d 218, 225 (1965).

Howard alleged in his state exhaustion petition that his claims were timely because they were presented without substantial delay from discovery and that circumstances beyond his control prevented discovery of the claims earlier.

The Clark decision was issued on July 29, 1993.

Under procedural default analysis jurisprudence, courts must look at the date on which a state petition should have been filed to determine when the default occurred. Calderon v. United States Dist. Ct. (Hayes), 103 F.3d 72, 75 (9th Cir. 1996). In Howard's case, his state habeas petition was presumptively timely in 1990, when his original state habeas petition was filed. Thus, his default under California's Clark articulated timeliness rules was before 1993, the year was decided.

On two occasions in late 1998 and early 1999, the Warden asked that the Court vacate the May 30, 1997 abeyance order, arguing that Howard's case was subject to the expedited provisions of Chapter 154 of Title 28. The Court rejected these requests on the grounds that Chapter 154 did not apply to Howard's case.

The Court found that Chapter 154 did not apply to any of the cases pending in the Fresno Division of the Eastern District of California in April 1999.

The next pertinent order was issued on June 15, 1999, when Court granted Howard's request that he be permitted to file his amended federal petition containing previously and newly exhausted federal claims within 30 days of completion of state exhaustion proceedings.

As of the present writing, Howard's state exhaustion petition is still pending before the California Supreme Court. An amendment to that petition was permitted by the state high court and thereafter filed on September 25, 2000. This Court has reviewed that amendment, as well as the April 23, 1997 exhaustion petition in connection with the present motion. The state exhaustion petition and amendment remain fully briefed, and as far as this Court can see, are ready for decision by the California Supreme Court.

II. Evolving Precedent Over the Past Nine Years.

In the nearly nine years since Howard filed his initial federal petition on March 14, 1997, and the date of this order, there have been some significant shifts in the controlling precedent regarding applicability of AEDPA, holding federal proceedings in abeyance, and statutory tolling of the statute of limitations under AEDPA. The only pertinent authority that has not undergone a change over the years is the precedent governing nunc pro tunc filings. Each of these applicable principles are discussed

A. Applicability of AEDPA.

At that time Howard filed his federal petition (March 14, 1997), the Court held federal proceedings in abeyance (May 30, 1997), and the Court established a due date for Howard's amended federal petition (June 15, 1999), caselaw dictated that because Howard's action was commenced prior to the effective date of the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), the provisions of AEDPA, including amendments to Chapter 153, 28 U.S.C. §§ 2241, et. seq., were not applicable. Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530, 540 (9th Cir. 1998). This authority was abrogated a little over four years later when the United States Supreme Court issued Woodford v. Garceau, 538 U.S. 202 (2003), and held that it is not the mere commencement of the action, but rather, the filing of the petition (alleging actual claims for relief) which determines whether AEDPA does or does not apply to a pending action. Cases with petitions on file prior to April 24, 1996, the effective date of AEDPA, are not subject to the provisions of AEDPA. Cases with petitions filed subsequent to that date are. See id. at 207. Since Howard's initial federal petition was filed on March 14, 1997, nearly eleven months after the effective date of AEDPA, the provisions of AEDPA do apply to his case, notwithstanding the parties' and the Court's previous understanding to the contrary.

Howard's federal habeas action was commenced on October 25, 1993 when he filed his request for appointment of counsel and a stay of execution of his death sentence.

B. Holding Federal Proceedings in Abeyance.

Prior to the issuance of Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528 (2005), controlling precedent in this circuit precluded federal courts from holding in abeyance "mixed" petitions, that is petitions containing exhausted and unexhausted claims. See Calderon v. United States District Court (Taylor), 134 F.3d 981, 985 (9th Cir. 1998). However, if the federal petition contained only fully exhausted claims, federal courts were at liberty to exercise discretion to hold federal proceedings in abeyance during state exhaustion. See id., at 987-88; Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir. 1977). Thus, if a federal court were presented with a mixed petition, the unexhausted claims would have to be deleted or withdrawn by amendment before the petition could be held in abeyance. Taylor, 134 F.3d at 986. With respect to capital cases, this Court followed the procedure of holding fully exhausted petitions in abeyance.

Petitioners were directed to file exhausted petitions and the Warden was given an opportunity to contest the exhaustion status of the petitions filed. Once the exhaustion issue was resolved, and the petitions were amended to delete any unexhausted claims, if necessary, abeyance of federal proceedings was ordered. In no case did this Court ever dismiss a mixed petition filed in a capital case. To the extent that either party references the practice of dismissing mixed capital habeas petitions, the discussion is irrelevant.

Under Rhines, a district court may now hold in abeyance a mixed petition under limited circumstances. 544 U.S. at ___, 125 S. Ct. at 1534-35. To do so, first, the district court must determine if "there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. at 1535. Second, the unexhausted claims must not be "plainly meritless." Id. Finally, a mixed petition "should not be stayed indefinitely," meaning, there should be specific limits on the trip to state court and back to federal court. Id.

Unfortunately, the Court in Rhines did not define or give any examples of what may constitute "good cause" for not presenting the unexhausted claims in state court first (or earlier). Less than a month later, however, the high Court did suggest one example of "good cause." That is, "reasonable confusion about whether a state filing would be timely." Pace v. DiGluglielmo, 544 U.S. ___, 125 S. Ct. 1807, 1813 (2005). After conducting independent research this Court has failed to uncover anypublished Ninth Circuit opinion elucidating this point further. Under Pace, it appears that a petitioner uncertain about whether his filing of a state petition will be timely is permitted to file a "protective" mixed petition in federal court and then request abeyance of that petition under Rhines. See Pace, 544 U.S. at ___, 125 S. Ct. at 1813. At least one Ninth Circuit case, however, in an unpublished opinion, found the requisite good cause because his unexhausted claim otherwise would be barred by the one-year statute of limitations under 28 U.S.C. § 2244(d) unless he were to file the protective petition and have it held in abeyance during state exhaustion proceedings. Barretto v. Giurbino, 150 Fed.Appx.604 (9th Cir. 2005). The rules governing citation of unpublished cases prevents this Court from relying on Barretto, and in any event, the rationale contradicts the holding in Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that the limitations period is not tolled during pendency of a federal petition). Walker calls into question whether the inclusion of an unexhausted claims in a protective mixed petition under Pace and held in abeyance under Rhines, satisfies the federal statute of limitations. It may be that such claims are subject to a limitations bar where those claims are denied as untimely by the state court on state post-conviction review, and the state review is not completed during the limitation period. This discussion leads to a separate discussion of changes in the manner in which statutory tolling under § 2244(d)(2) applies to AEDPA cases.

C. Statutory Tolling of the Statute of Limitations under AEDPA.

Under 28 U.S.C. § 2244(d)(2), the one-year statute of limitations is tolled during the pendency of a "properly filed" application for state post-conviction relief:

The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

Prior to 2005, when Pace was decided, courts in the Ninth Circuit generally found that if a state post-conviction was filed within the federal limitations period, the statute was tolled under § 2244(d)(2), no matter the reason for the state court denial. Ninth Circuit courts specifically did not equate state procedural defaults with "improperly filed" state post-conviction petitions. Thus, so long as a state petition was filed during the federal limitations period, statutory tolling was available. See Dictado v. Ducharme, 244 F.3d 724, 726-29 (9th Cir. 2001). This construction of the statutory tolling provision was based on Artuz v. Bennett, 531 U.S. 4, 8-10 (2001) which distinguished between time limits and procedural bars. Then, in Pace, the Supreme Court held that "time limits, no matter their form are `filing' conditions" (which determine whether a state post-conviction petition is properly filed), and that "[w]hen a postconviction is untimely under state law, that is the end of the matter for purposes of § 2244(d) ((2)." Pace, 544 U.S. at ___, ___, 125 S. Ct. at 1812, 1814 (internal quotation and brackets omitted). The phrase "no matter their form" appears to embrace procedural defaults based on untimeliness, notwithstanding the holding in Bennett. The only rationale for distinguishing the two cases is that the procedural default in Bennett did not involve a timeliness bar. See note 13, supra.

If and when the state court denial was based in whole or part on state procedural rules, the issue of procedural default in federal court was still an issue.

The procedural bar at issue in Bennett, was based on two grounds: the petitioner's presentation of some claims which were previously determined on direct appeal; and the petitioner's presentation of other claims which could have been raised on direct appeal, but were not. Id. at 7.

The Pace decision also applies the limitations bar on a claim-by-claim basis, meaning that some claims in a federal habeas petition may be time-barred, while others will be considered timely. The Court acknowledges that Howard takes a contrary view and argues that the statute of limitations in 28 U.S.C. § 2244(d) applies to the application as a whole and not on a claim-by-claim basis. While this position finds support in Bennett, 531 U.S. at 10 (holding that the tolling provision of § 2244(d)(2) "refers only to `properly filed' applications and does not contain the peculiar suggestion that a single application can be both `properly filed' and not `properly filed'"), it contradicts Pace. In Pace, the Court specifically rejected the argument that since § 2244(d)(2) refers to "a properly filed application," any condition applied on a claim-by-claim basis, such as the state law there at issue, could not be a "condition to filing" which determines whether a state petition is "properly filed." Pace. 544 U.S. at ___-___, 125 S. Ct. at 1813-14. The Supreme Court's rejection of this argument is based on the fact that another provision of § 2244, that is subsection (b) (pertaining to subsequent petitions), requires inquiry into specific claims rather than to the application as a whole. Id. The Supreme Court further noted that even in § 2244(d)(2), the provision at issue, the statute refers to a "properly filed application . . . with respect to the pertinent judgment of claim." See id.

This Court follows the most recent Supreme Court precedent.

The Court also acknowledges that Howard disputes Pace is applicable to his case, or any California case, at all. As he argued at the hearing in this matter, the issue is currently before the Ninth Circuit in Bonner v. Carey, 425 F.3d 1145 (9th Cir. 2005) on a petition for rehearing and rehearing en banc. D. Utilizing Nunc Pro Tunc Amendments.

Without oral argument or the benefit of briefing on the applicability of Pace to the case at hand, the Ninth Circuit panel held that a California state procedural bar for untimeliness in a non-capital case was an "improperly filed" state post-conviction petition which disqualified the petitioner from the benefits of statutory tolling under § 2244(d)(2).

The circumstances governing when a nunc pro tunc amendment should be approved have not changed in the nine years Howard's exhaustion petition has been pending before the California Supreme Court. The nunc pro tunc devise traditionally has been utilized as part of a court's inherent power to correct court records in order to reflect what actually occurred. Invocation of this power is limited.

It does not imply the ability to alter the substance of that which actually transpired or to backdate events to serve some other purpose. . . . [I]ts use is limited to making the record reflect what the district court actually intended to do at an earlier date, but which it did not sufficiently express or did not accomplish due to some error or inadvertence.
United States v. Sumner, 226 F.3d 1005, 1010 (9th Cir. 2000).

III. Analysis.

When the Court directed the Warden to file a responsive brief to Howard's present motion, it instructed him to address the applicability of Pace in the event some claims in Howard's state exhaustion petition are denied as untimely. In addition, the Court directed the Warden to address two other subjects: whether the claims alleged in the exhaustion petition relate back to the original federal petition as described in Mayle v. Feliz, 544 U.S. ___, 125 S. Ct. 2562 (2005); and whether Howard might be entitled to equitable tolling of the statute of limitations. In reviewing the parties respective briefs and the lengthy procedural history in this case, the Court determines that the relation back and equitable tolling issues are not properly before the Court and this juncture. Accordingly, the Court declines to address them. The Pace and Rhines cases, however, are relevant to the parties' respective contentions. Howard requests that the Court back-file his amended federal petition as of April 23, 1997, and then hold the federal proceedings in abeyance. The Warden contends there is no jurisdictional basis to utilize the nunc pro tunc procedure and that filing the amended petition must await completion of state exhaustion proceedings. In the alternative, if the Court permits filing of the amended petition during state exhaustion proceedings, the Warden maintains that the Court should decline to hold federal proceedings in abeyance under Rhines because Howard has not been diligent in the development and prosecution of his claims.

A. Back-Filing the Amended Petition to April 23, 1997, Nunc Pro Tunc.

Howard argues that but for the now abrogated precedent, he would have filed a mixed petition in federal court and requested abeyance of the proceedings on April 23, 1997. He maintains that Rhines now makes this possible. He also argues that the Court has inherent power to modify the prior abeyance order and that the Court has the authority to permit the nunc pro tunc filing under its equity powers to prevent an injustice. See Mitchell v. Overman, 103 U.S. 62, 64-65 (1881).

The Warden characterizes the application for the requested nunc pro tunc amendment as having the Court say something that is untrue. He additionally argues that under traditional nunc pro tunc jurisprudence, the Court is without authority to apply the procedure. He further argues, strenuously, that Howard has not prosecuted his federal claims diligently, and therefore does not qualify for the benefits of the Court's inherent equitable powers.

The Court declines to exercise its authority to permit Howard to back-file his amended federal petition, nunc pro tunc, to April 23, 1997. There was no inadvertence which caused the Court to proceed in the manner it did in 1997. See Sumner, 226 F.3d at 1010. Rather, the Court purposefully required Howard to file a fully federal exhausted petition and identify his unexhausted claims before holding federal proceedings in abeyance during state exhaustion. The Court did express what it intended to do in 1997. The fact that the controlling precedent has changed since that time does not entitle Howard to the relief he presently seeks. This is an entirely different type of situation from that presented in Mitchell, 103 U.S. 62, on which Howard relies. In that case the lower (state) court entered a civil action judgment on November 10, 1872, in favor of the plaintiff, which was made effective as of October 16, 1868. Back-dating the decree followed from the fact that the state court held the matter under submission for an undue length of time. Id. at 63. Unknown to the court or the defense, the plaintiff died, intestate, on November 10, 1869, prior to entry of judgment, but after its effective date. Id. When the plaintiff's personal representative proceeded to enforce the judgment in 1873, the defendant resisted because a judgment entered on behalf of a deceased, intestate, plaintiff is void. Id. The plaintiff's representative urged that the decree was valid because it waseffective prior to the plaintiff's death. The Supreme Court agreed because the delay in entering the judgment in the first place was not due to "any cause attributable to the laches of the parties," but was for the court's "convenience, or the multiplicity or press of business, [or] the intricacy of the questions involved." Id. at 65. Taking an inordinate amount of time to reach a decision while a matter is under submission is a completely different concept than experiencing a change in precedent. In the present case, this Court was simply following Ninth Circuit precedent, and the Ninth Circuit was following Supreme Court precedent which wasn't revised until the Supreme Court decided Rhines.

Nor does the Court see the necessity of the nunc pro tunc devise in this case to prevent an injustice. Were the Court to grant the relief Howard seeks and the California Supreme Court then ruled some or all of the claims in the exhaustion petition were untimely, Pace might still preclude a finding of statutory tolling for those claims, because the federal limitations period is not tolled by filing a federal petition. Walker, 533 U.S. at 181-82. Although the Court is well-aware that the applicability of Pace is uncertain, Ninth Circuit authority exists concerning its applicability, see Bonner, 425 F.3d 1145, even though that authority is scheduled for en banc review. Further, the Court acknowledges that the adequacy of an untimeliness state default would have to be litigated at some point in the process, especially in light of the fact that the Court already observed that since Howard's default would be considered pre- Clark, prevailing authority dictates the default would not bar federal review. See May 30, 1997 order (quoting Morales, 85 F.3d at 1391, Bean, 96 F.3d at 1131, and Hayes, 103 F.3d at 75). On the other hand, if the California Supreme Court's denial of Howard's state exhaustion petition demonstrates that it was timely, statutory tolling would be available under § 2244(d)(2) for all claims. As the Supreme Court stated in Mitchell, "[a] nunc pro tunc order should be granted or refused, as justice may require in view of the circumstances of the particular case." 103 U.S. at 65. In the case of Howard, it will be refused.

B. Filing the Amended Petition as of November 1, 2005.

At the hearing the parties clarified their respective positions as to whether Howard's amended petition can or should be filed during state exhaustion, at all, even if the Court declines to enter the nunc pro tunc relief Howard requests. Howard argues that he is absolutely entitled to file an amended petition during state exhaustion, and in fact he actually filed it on November 1, 2005. The Warden counters that the filing of the amended petition must await completion of state exhaustion proceedings because the (federal) case is on abeyance under the regimen in practice pursuant to Greenawalt, 105 F.3d 1268 and Taylor, 134 F.3d 981. If the Court switches to the new procedure under Pace and Rhines, the Warden argues, Howard will not be entitled to abeyance because he cannot meet the Rhines good cause requirement and is not entitled to benefit from the Court's equitable power because he has not been diligent in pursuing his federal claims.

Although Howard is not entitled to a nunc pro tunc order back-filing his amended petition to April 23, 1997, the Court finds that under Pace and Rhines, he is authorized to file his amended petition prior to completion of state exhaustion proceedings. Both of these cases permit a petitioner to file a mixed federal petition while s/he pursues state remedies. The Court can discern no rational basis for limiting the filing of such protective petitions to the beginning of the state exhaustion process, especially where, as here, the option only became available within the last several months. The Warden has presented no authority to dissuade the Court from this course. The Court hereby approves the November 1, 2005 filing of Howard's amended petition. The only remaining question is abeyance.

C. Holding Federal Proceedings in Abeyance Pending Completion of State Exhaustion Proceedings.

The Warden's objection to holding Howard's amended petition in abeyance under Rhines is that he has not been diligent in developing his federal claims and pursuing his state remedies. As a result, the Warden claims Howard is disqualified outright under the third Rhines requirement, he cannot establish the first Rhines requirement, and finally, he is not entitled to equitable relief. To reiterate, the Rhines requirements for holding a mixed petition abeyance are:

1. the district court must determine there was good cause for the petitioner's failure to exhaust claims first (or earlier) in state court;
2. the unexhausted claims (or claims pending in the state exhaustion petition) must not be plainly meritless; and
3. a mixed petition should not be stayed indefinitely, but rather, there should be specific limits on the trip to state court and back, and, "if a petitioner engages in abusive litigation tactics or intentional delay, the district court should not grant him a stay at all."

544 U.S. at ___, 125 S. Ct. at 1535.

The Warden offers two separate but related circumstances which he claims demonstrate Howard's claimed lack of diligence. The first is comprised of conduct by Howard's counsel which led this Court to impose sanctions in September 1996. The second is that the federal constitutional claims presented in the state exhaustion petition were not pursued in a timely manner.

Neither example is compelling. In the first place, the diligence requirement under Rhines relates to filing delays between federal and state court, see, 544 U.S. at ___, 125 S. Ct. at 1535, a requirement not relevant to these proceedings at all. As the procedural history of this case demonstrates, the state exhaustion petition is currently on file in the California Supreme Court, and the amended federal petition is on file in these proceedings. There can and will be no delays as contemplated by Rhines. Once the California Supreme Court denies post-conviction relief (if the California Supreme Court denies post-conviction relief), federal proceedings can move ahead without any delay.

The Court does not express an opinion or prediction that state relief will or will not be denied.

In the second place, on the merits, the Warden hasn't demonstrated lack of diligence. With respect the September 1996 sanctions, the Court did not find lack of diligence in the development of Howard's federal claims. Rather the statement that CAP had been "knowingly dilatory" was based on inconsiderate behavior, for not keeping the Court apprised of the CAP's progress in developing federal claims and maintaining the schedule for filing the federal petition by October 24, 1996. Along with imposing minimal sanctions, the Court also granted CAP investigative funding for claim development and upon request, extended the due date for the federal petition by seven months.

The assertion that Howard was dilatory in presenting his claims to the California Supreme Court is not for this Court to decide, notwithstanding the Warden's strenuous argument. Indeed it was this very conclusion which compelled the Court in its May 30, 1997 order to grant abeyance in the first place. As summarized above, based upon this Court's reading of the exhaustion petition, including the allegations addressing the California timeliness standards, the Court could not and would not conclude that the presentation of the exhaustion petition to the California Supreme Court was futile. In both the April 23, 1997 exhaustion petition and the September 25, 2000 amendment, Howard takes great pains to explain how he discovered claims after they would have been presumed timely pursuant to the applicable California timeliness standards. As alleged in these state pleadings, part of the delay was attributable to efforts by governmental agencies, including the Tulare City Council, the Tulare County Counsel's Office, the Tulare County District Attorney's Office, and the Attorney General's Office, to prevent Howard's attorneys from gaining access to exculpatory records. Those records are said to concern extensive internal and external investigation of police misconduct in Tulare County, specifically with respect to the officers who investigated Howard's case. The other part of the delay is said to be attributable to lack of investigative funds, which Howard's litigation team finally were able to obtain in federal court during development of his federal claims (including claims which had not been exhausted). A significant allegation of actual innocence is advanced by virtue of expert opinion of a forensic pathologist who reviewed trial evidence. Claims of juror misconduct (supported by juror declarations) also were developed with the aid of available federal funds.

The Court expresses no opinion on whether Howard's allegations can be or have been established.

The Warden's review of the claims in the exhaustion petition produce a different conclusion. He argues that factual bases for many claims were available long before April 23, 1997. Analogizing to a Fifth Circuit case, In re Wilson, 433 F.3d 451 (5th Cir. 2005), the Warden is critical of Howard for waiting until just two days before the federal limitations period expired before filing his exhaustion petition. In Wilson, the Fifth Circuit concluded the petitioner exceeded the limitations period when he returned to federal court after timely exhausting a newly discovered claim in state court. However, because counsel only left one day to accomplish the federal filing, and he failed to adhere to the rules for seeking permission to file a second federal habeas petition in federal court, the one day cushion was insufficient. The only avenue open to the petitioner to defeat the statute of limitations was equitable tolling. The Fifth Circuit held that the "actions of his counsel — particularly in waiting until the very last day of the limitations period to file his [state] application — appear to us to be more indicative of brinkmanship than of careful diligence." Id. at 453. Aside from the fact that this Court does not discern from these facts any strategic advantage from counsel's waiting until one day before the expiration of the limitations period, which would justify the accusation of "brinkmanship," the situation in Wilson is completely distinguishable from Howard's case. First and foremost, in Wilson, it must understood that all players (counsel, the courts, the State, and the petitioner) knew when the federal statute limitations would expire, whereas here, all of the players (counsel, the Court, the Warden, and Howard) believed that AEDPA did not apply, and hence there was no statute of limitations to worry about. Second, the precise issue under consideration in Wilson was equitable tolling, whereas here, the issue is holding Howard's amended federal petition in abeyance. The Warden's arguments are unpersuasive and thus, the third requirement of Rhines, that is, prompt state litigation and return to federal court, is satisfied.

Apart from finding satisfaction of the third Rhines requirement, the Court finds good cause to hold the amended petition in abeyance. That good cause is supplied by Pace, 544 U.S. ___, 125 S. Ct. 1807. "A petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute `good cause' for him to file [a mixed petition] in federal court." Id. at ___, 125 S. Ct. at 1813. This Court already has found there is reasonable confusion about the timeliness standards pertinent to Howard's state exhaustion petition when it determined in the May 30, 1997 order that any pre- Clark untimeliness default is not adequate to bar federal review. The Court acknowledges and rejects the Warden's separate argument that because of the 1996 sanctions order, Howard wasn't confused about timeliness requirements for state claims. First, as already explained, the 1996 order was not based on lack of diligence in the development of federal claims and the exhaustion of state remedies. Second, even if the Court had found lack of diligence, there is no connection between failure to pursue claims and being confused about timeliness standards under California habeas rules.

Nor are there any equitable considerations which detract from permitting abeyance. The Warden's citation to Pace, 544 U.S. at ___, ___, 125 S. Ct. at 1814-15, for elucidation about equitable principles relates to the availability of equitable tolling of the statute of limitations. As the Court declines to enter any order about equitable tolling, the Warden's argument is inapposite. Abeyance under Rhines for Howard's amended petition is authorized.

IV. Order.

Howard's request for an order permitting him to back-file his amended petition nunc pro tunc to April 23, 1997 is denied. The Court accepts the filing of the amended petition as of the date it was provided to the Court, on November 1, 2005. The Court further holds in abeyance federal proceedings, except for the filing of quarterly status reports as hereinafter provided. During the pendency of state exhaustion proceedings, Howard shall advise this Court of the progress of state proceedings by filing status reports on a quarterly basis beginning March 1, 2006, and continuing every three months thereafter until the state proceedings are concluded.

IT IS SO ORDERED.


Summaries of

Howard v. Ornoski

United States District Court, E.D. California
Feb 28, 2006
Case No. CV F-93-5726-REC (E.D. Cal. Feb. 28, 2006)
Case details for

Howard v. Ornoski

Case Details

Full title:Albert Cecil Howard, Petitioner, v. Steven W. Ornoski, As Acting Warden of…

Court:United States District Court, E.D. California

Date published: Feb 28, 2006

Citations

Case No. CV F-93-5726-REC (E.D. Cal. Feb. 28, 2006)