JANIS L. SAMMARTINO, District Judge.
Presently before the Court are: (1) Respondent Daniel Paramo's Motion to Dismiss the Petition for Writ of Habeas Corpus as a Mixed Petition, and Claim 2 as Unexhausted and Untimely, ("MTD," ECF No. 18); (2) Magistrate Judge Mitchell D. Dembin's Report and Recommendation ("R&R") advising that the Court should grant in part Respondent's MTD, (ECF No. 26); and (3) Petitioner's Objections to the R&R, ("R&R Objs.," ECF No. 27). Respondent did not file a reply to Petitioner's Objections. After considering the parties' arguments and the law, the Court (1)
Judge Dembin's R&R contains a thorough and accurate recitation of the factual and procedural histories underlying the instant Petition for Writ of Habeas Corpus. (See R&R 2-4.) This Order incorporates by reference the background as set forth therein.
Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district court's duties regarding a magistrate judge's report and recommendation. The district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 673-76 (1980). In the absence of a timely objection, however, "the Court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72 advisory committee's note (citing Campbell v. U.S. Dist. Court, 510 F.2d 196, 206 (9th Cir. 1974)).
On May 11, 2016 Petitioner filed a Petition for Writ of Habeas Corpus in this district. ("Petition," ECF No. 1.) Petitioner challenges his conviction on two grounds: (1) the trial court erred in admitting the preliminary hearing testimony of Hana Jabbar at trial; and (2) Petitioner received ineffective assistance of counsel when his attorney failed to challenge the trial court's decision to permit the guilty verdict to stand and the case to proceed to sentencing when Juror 4 expressed she had reasonable doubt after the verdict was given. (R&R 2
On October 25, 2016, Respondent Paramo filed a Motion to Dismiss the Petition. (ECF Nos. 18, 19.) Respondent conceded that ground one was exhausted and thus reviewable by this Court, but argued that ground two was unexhausted and untimely, thus counseling dismissal of both claims. (R&R 4 (citing ECF No. 18, at 9).) Petitioner acknowledged that ground two was unexhausted, but argued that the Court should stay the case pending exhaustion of ground two of the Petition, or, in the alternative, to dismiss only ground two. (Id. (citing ECF No. 25, at 8).)
Judge Dembin first concluded that the Petition was timely, (R&R 5), and next considered whether the Court should stay the Petition pending exhaustion of ground two in state court under either Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002), abrogated on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), or Rhines v. Weber, 544 U.S. 269 (2005). Judge Dembin first concluded that a stay under Kelly
Petitioner solely objects to Judge Dembin's conclusion that a stay is not warranted under Rhines. (R&R Objs. 2.) First, Petitioner argues that Judge Dembin erred in relying on the prejudice prong of the Strickland
Given Petitioner's Objections, the Court will review, de novo, whether the Court should stay the Petition pending exhaustion of ground two pursuant to Rhines.
Rhines permits a district court to stay a mixed petition (i.e., a petition with exhausted and unexhausted claims) in its entirety. King v. Ryan, 564 F.3d 1133, 1139-40 (9th Cir. 2009). To stay the entire mixed petition without dismissing unexhausted claims, the petitioner must show (A) good cause for failing to exhaust the claims in state court before filing the federal petition, (B) that the unexhausted claims are not "plainly meritless," and (C) that the petitioner has not engaged in "abusive litigation tactics or intentional delay." Rhines, 544 U.S. at 277-78; see also King, 564 F.3d at 1139.
The first factor in a Rhines analysis is whether Petitioner has demonstrated good cause for failing to raise his unexhausted claim in state court. "There is little authority on what constitutes good cause to excuse a petitioner's failure to exhaust." Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014); Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005). But the Ninth Circuit has recently explained that
Blake, 745 F.3d at 982 (citing Pace, 544 U.S. at 416). Thus, the Blake Court held that ineffective assistance "by post-conviction counsel can be good cause for a Rhines stay" where a petitioner's showing of good cause is concrete and reasonable, not a bare allegation of ineffective assistance of counsel. Id. at 983.
As an initial matter, the Court agrees with Petitioner that a discussion of the merits of Petitioner's ineffective assistance of counsel ("IAC") claim should not be considered in the "good cause" portion of the Rhines analysis. Rather, the Court should simply determine whether Petitioner's excuse for failing to exhaust the claim is reasonable and supported by sufficient evidence. See Blake, 745 F.3d at 982.
The Court finds that Petitioner has demonstrated good cause under Rhines. As background, part of Petitioner's IAC claim is that his appellate counsel failed to raise any issues regarding Juror 4 in his appeal. (R&R 11 (citing ECF No. 25, at 5; Lodg. Nos. 3, 5, 7).) Specifically, Juror 4 expressed she had "reasonable doubt . . . on certain counts" after the guilt phase and during the penalty phase of Petitioner's trial. (Id. at 10 (citing ECF No. 1, at 104).) After some discussion, Petitioner's trial counsel requested that the jury return to the jury room and reopen their deliberations or, in the alternative, a mistrial. (Id. at 10-11 (citing ECF No. 1, at 104-106; 157).) The trial court denied the requests. (Id. (citing ECF No. 101, at 127-176).) While Petitioner's trial counsel raised the issue, Judge Dembin found that Petitioner's appellate counsel failed to raise any issues regarding Juror 4. (R&R 11.) Importantly for the "good cause" analysis, Judge Dembin found that
(Id. at 11-12.) After a review of the record, the Court agrees with Judge Dembin's assessment and thus finds that Petitioner has adequately demonstrated good cause for failing to raise his unexhausted claim in state court (specifically, he demonstrated that he relied on his appellate counsel to raise such claims on his behalf). Nothing more is needed for this consideration. Thus, while Judge Dembin goes on to assess the merits of Petitioner's IAC claim in his "good cause" analysis, (id. at 12-15), and ultimately concludes that Petitioner has not shown "good cause" as a result of that assessment, that analysis is more appropriately presented under the claim merit analysis. Accordingly, the Court will consider that portion of Judge Dembin's analysis below, infra Part III.B.
The second factor in a Rhines analysis is whether a petitioner's claims are "plainly meritless," Rhines, 544 U.S. at 277, or, stated differently, are "potentially meritorious," id. at 278.
As a threshold matter, the Court disagrees with Petitioner's argument that the Court cannot consider the prejudice prong of Strickland in assessing his IAC claim. As discussed below, prejudice is a required element of an IAC claim, and thus the Court must consider it to determine whether Petitioner's IAC claim has some merit. See, e.g., Gonzalez v. Wong, 667 F.3d 965, 982 (9th Cir. 2011) (considering the prejudice/materiality prong of a potential Brady v. Maryland, 373 U.S. 83 (1963), violation in the context of a Rhines merits analysis). But Petitioner further argues that the second Rhines consideration, whether a claim is "plainly meritless" or "potentially meritorious," is a generous standard and thus does not require him to demonstrate that he will definitely prevail or even that he is likely to prevail on the merits. (R&R Objs. 4.) The Court agrees with Petitioner on this point, and notes that this approach is consistent with the Ninth Circuit's jurisprudence in Rhines analyses. See, e.g., Gonzalez, 667 F.3d at 980 ("Our discussion below is only to demonstrate why we conclude that Gonzales has a
"In order to establish ineffective assistance of counsel, a petitioner must prove both deficient performance by his counsel and prejudice caused by the deficiency." Gonzalez, 667 F.3d at 987. "To demonstrate deficient performance [Petitioner] must show that counsel's performance `fell below an objective standard of reasonableness' based on `the facts of the particular case [and] viewed as of the time of counsel's conduct.'" Id. (citing Strickland v. Washington, 466 U.S. 668, 688-90 (1984)). "In order to establish prejudice [Petitioner] `must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Id. (citing Strickland, 466 U.S. at 694).
As discussed, the crux of Petitioner's IAC claim is that his counsel—both trial and appellate—failed to inquire into the reason for Juror 4's doubt or raise the issue on appeal. (R&R Objs. 5; see also ECF No. 25, at 4-5; ECF No. 1, at 13.) Specifically, Petitioner argues that as a result of Juror 4's doubt, the jury's verdict was not unanimous, thus violating his constitutional rights to a unanimous jury verdict. (R&R 12; Objs 4-5; ECF No. 25, at 5; ECF No. 1, at 13.) Judge Dembin recounted the factual and procedural basis for Petitioner's IAC claim as follows:
(R&R 10-11.)
As an initial matter, the Court agrees with Petitioner and Judge Dembin that, because his case was a capital case, Petitioner had a constitutional right to a unanimous jury under California law and possibly under Federal law as well. (R&R 12; see also People v. Collins, 17 Cal.3d 687, 693 (1976) (California law requires unanimous jury verdict in criminal cases); cf. Schad v. Arizona, 501 U.S. 624, 634 n.5 (1991) ("[A] state criminal defendant, at least in noncapital cases, has no federal right to a unanimous jury verdict . . . ."). Nevertheless, Judge Dembin found that Petitioner had not made a well-argued claim of unanimous jury infringement or juror misconduct. (R&R 12.) Specifically, Judge Dembin found that
(R&R 12-13.)
But despite the appearance of a unanimous jury verdict, Petitioner's core objection to Judge Dembin's analysis is premised on
Judge Dembin disagreed with this juror misconduct claim, finding that
(R&R 14-15.)
Petitioner objects to this conclusion, arguing that without conducting any further inquiry of Juror 4, "it was impossible to determine whether the juror simply had `buyer's remorse,' or whether her concerns were based on some other factors such as having been coerced or having been influenced by impermissible juror conduct." (R&R Objs. 4-5.) In other words, Petitioner argues that this conclusion "fails to recognize the inadequacy of the inquiry conducted and trial counsel's ineffective representation. It is precisely due to the trial court's failure to conduct an adequate inquiry with respect to Juror 4, and trial counsel's ineffective failure to request such an inquiry, that the reasons for Juror 4's reasonable doubt remains unknown. Thus it is impossible to conclude that juror misconduct did not occur, and in fact the nature of Juror 4's approach to the trial court suggests that her concerns were indeed grounded in something other than her own state of mind." (Id. at 7-8.)
After a review of the record, the Court disagrees with Petitioner, and in particular Petitioner's suggestion that "it is impossible to conclude that juror misconduct did not occur, and in fact the nature of Juror 4's approach to the trial court suggests that her concerns were . . . grounded in something other than her own state of mind." (Id.) To the contrary, the record shows that the court questioned Juror 4 about her concerns and Juror 4 responded that her concerns were premised on
Then the following exchange took place:
(Id. at 105-07.) Viewing this exchange as a whole, the Court finds that, contrary to Petitioner's objections, Juror 4's concerns appeared to center on her internal struggle with reasonable doubt, particularly after she delivered her verdict. Such testimony is "flatly prohibited" to impeach the jury's verdict. See Tanner, 483 U.S. at 117. True, as Petitioner notes the court did not conduct a further inquiry into Juror 4's concerns or specifically ask why she wanted to meet privately with the court. But there is nothing in her exchange with the court that suggests that such a request was to discuss juror—or other—misconduct that might otherwise have supported a further investigation into Juror 4's concerns. Nor does Petitioner provide any specific citation to the record that would so suggest. And, even then, not all allegations of juror misconduct are admissible. See, e.g., Franklin v. McEwen, 2013 WL 6817662, at *18 (C.D. Cal. Dec. 20, 2013) (citing Estrada v. Scribner, 512 F.3d 1227, 1237 (9th Cir. 2008) (juror's declaration that he felt pressured to vote guilty inadmissible evidence of subjective mental process); Panella v. Marshall, 434 Fed. App'x 603, 605 (9th Cir. 2011) (rejecting habeas claim that juror misconduct—foreperson's non-physical coercion of another juror to change her vote—warranted reversal of conviction where record supported state court's finding that allegations described no more than permissible "heated discussions that naturally occur at times during jury deliberations")).
In sum, the Court finds that Petitioner's claims that his right to a unanimous jury was infringed or that there was potential jury misconduct are not potentially meritorious. Consequently, his IAC claim premised on trial counsel's failure to conduct further investigation into Juror 4 and appellate counsel's failure to raise the issue on appeal is also not potentially meritorious (i.e., Petitioner suffered no prejudice based on his counsel's alleged failures in this regard). Thus, the Court concludes that a stay under Rhines is inappropriate. (Cf. R&R 14-15 ("Because Petitioner's right to a unanimous jury was not infringed and there was no juror misconduct, any deficienc[ies] in failing to raise these issues on appeal or in state post-conviction applications for collateral relief were not prejudicial under Strickland v. Washington. This is inadequate to show ineffective assistance of counsel for purposes of a Rhines stay.").) Accordingly, the Court
For the reasons stated above, the Court (1)
