(HC) Chatman v. Evans, No. 2:2010cv00264 - Document 69 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/15/15 RECOMMENDING that petitioners motion to amend (ECF No. 65 ) be GRANTED; Petitioners motion to stay this action pending exhaustion of state remedies as to new clai ms in the second amended petition (ECF No. 66 ) be GRANTED; Petitioner be directed to file a request to lift the stay within 30 days of a decision by the California Supreme Court concluding state habeas review; and the Clerk be directed to administratively close this case for purposes of case status pending exhaustion. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY A. CHATMAN, 12 13 14 No. 2:10-cv-0264 KJM CKD P Petitioner, v. FINDINGS AND RECOMMENDATIONS M. S. EVANS, 15 Respondent. 16 17 This habeas action pursuant to 28 U.S.C. § 2254 was remanded by the Ninth Circuit in 18 November 2014. (ECF No. 53.) Petitioner is a state prisoner represented by counsel. Before the 19 court are petitioner’s motion to amend, submitted along with a proposed second amended petition 20 (ECF Nos. 64 & 65) and his motion to stay proceedings pending exhaustion of state remedies 21 (ECF No. 66). As these motions are related, respondent has filed a single opposition (ECF No. 22 67) and petitioner has filed a reply (ECF No. 68). 23 I. Background 24 In 2003, petitioner was spending Christmas Day at his cousin’s house when the two got 25 into an argument, and petitioner wounded his cousin’s hand with a pair of pruning shears. (ECF 26 No. 64-1 at 7-9.) In 2005, following a jury trial in the Solano County Superior Court, petitioner 27 was convicted of premeditated attempted murder and related offenses, and sentenced to an 28 indeterminate prison term of 23 years to life. (ECF No. 1 at 9-10.) 1 1 Petitioner commenced this federal habeas action in January 2010, challenging his 2005 2 conviction. (ECF No. 1 at 2.) He claimed that his trial counsel rendered ineffective assistance by 3 adopting a self-defense theory but not allowing petitioner to testify, and that his appellate counsel 4 was also ineffective.1 (Id. at 9.) 5 On December 10, 2010, petitioner filed motions to amend the petition and stay this action 6 pending exhaustion of a new claim, along with a proposed amended petition. (ECF Nos. 21 & 7 22.) On February 9, 2011, the previously-assigned magistrate judge denied these motions, as 8 findings were pending dismissing the original petition as time-barred. (ECF No. 29.) 9 After additional proceedings, on January 19, 2012, the district court adopted findings and 10 recommendations dismissing the original petition in this action as untimely. (ECF Nos. 39 & 45.) 11 Petitioner appealed the judgment of dismissal. (ECF No. 47.) 12 On November 26, 2014, the Ninth Circuit reversed the judgment of dismissal and 13 remanded this action to the district court. (ECF No. 53.) The Ninth Circuit found the January 14 2010 petition timely under the doctrine of equitable tolling.2 (Id.) 15 16 On February 5, 2015, petitioner filed a pro se motion to amend, along with a first amended petition. (ECF Nos. 58 & 59.) 17 On March 16, 2015, petitioner was appointed counsel in this action. (ECF No. 62.) On 18 the same day, the court denied petitioner’s motion to amend without prejudice to renewal, “so that 19 petitioner may consult his attorney before determining how to proceed.” (ECF No. 63.) 20 On July 14, 2015, petitioner filed the instant motions to amend and stay, along with the 21 proposed second amended petition. (ECF Nos. 64-66.) 22 //// 23 //// 24 1 25 26 27 28 In 2009, petitioner filed two state habeas petitions raising these claims. The second petition was denied in the state supreme court in October 2009. (ECF No. 1-1 at 36-39.) Thus it appears this claim was exhausted at the time of filing. 2 On December 12, 2014, the court issued an order outlining for petitioner, then proceeding pro se, his procedural options in light of the Ninth Circuit’s remand. (ECF No. 54.) The order was subsequently vacated. (ECF No. 55.) 2 1 II. Motion to Amend 2 In his motion to amend, petitioner through counsel asserts that he 3 seeks leave to file the second amended petition due to his serious mental health conditions, lack of language skills, low IQ, and the recent appointment of counsel. The second amended petition includes the two claims in Chatman’s first amended petition, which have already been deemed timely filed under the equitable tolling doctrine. It adds an additional claim under Batson v. Kentucky, 476 U.S. 79 (1986) (claim 3) and a cumulative error claim (claim 4). 4 5 6 7 8 (ECF No. 65 at 2-3.) 9 10 Specifically, in the proposed second amended petition, petitioner asserts the following claims: 11 CLAIM 1 12 15 Petitioner was deprived of his rights . . . where his trial counsel rendered ineffective assistance of counsel by failing to properly investigate and present evidence of petitioner’s mental health history and conditions to negate the intent element for attempted first-degree murder. Appellate counsel also rendered ineffective assistance by failing to raise this claim in a petition for review to this Court. 16 CLAIM 2 17 Petitioner was deprived of his rights . . . where his trial counsel rendered ineffective assistance of counsel for using a self-defense strategy at trial without having petitioner testify in support of the defense. Sentencing and appellate counsel rendered ineffective assistance for failing to raise this issue in a motion for new trial and on appeal, respectively. 13 14 18 19 20 21 CLAIM 3 23 Petitioner was deprived of his rights . . . by the prosecutor’s discriminatory use of peremptory challenges to strike three AfricanAmerican jurors and his appellate counsel rendered ineffective assistance of counsel in failing to raise this issue on appeal. 24 CLAIM 4 25 Even if Claims 1-3 were not each individually sufficiently prejudicial to warrant habeas relief, the errors cumulatively were so prejudicial as to require a new trial. 22 26 27 (ECF No. 64 at 4-5) (internal citations omitted). 28 As to exhaustion, petitioner asserts: 3 Claim 1 was raised in petitioner’s briefs to the California Court of Appeal, 1st District; appellate counsel rendered ineffective assistance in failing to present this claim to the California Supreme Court in a petition for review and the California Supreme Court erred in denying petitioner’s pro se petition for review as untimely. 1 2 3 4 (Id. at 5.) Claim 2 was exhausted in state habeas proceedings. (Id.; see n.1, supra.) “Claims 3-4 5 6 were not raised on appeal because Petitioner’s appellate counsel rendered ineffective assistance in 7 failing to include these claims on appeal.” (Id.) In conjunction with his motion to amend, petitioner moves to stay this action pursuant to 8 9 Rhines v. Weber, 544 U.S. 269 (2005) while he exhausts Claims 1, 3 and 4 in the state courts. 10 (ECF No. 66.) On June 30, 2015, petitioner through counsel filed an exhaustion habeas petition 11 in the California Supreme Court, which is now pending. (Id. at 5-6; see ECF No. 66-2.) Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be given 12 13 freely when justice requires. In deciding whether justice requires granting leave to amend, factors 14 to be considered include the presence or absence of undue delay, bad faith, dilatory motive, 15 repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing 16 party and futility of the proposed amendment. Forman v. Davis, 371 U.S. 178, 182 (1962). In opposition to amendment, respondent argues that “the new claims petitioner raises . . . 17 18 do not relate back to the ineffective assistance claims raised in the original petition and are 19 therefore untimely. Since the new claims are barred by the statute of limitations, petitioner 20 should not be permitted to amend his petition.” (ECF No. 67 at 1.) Essentially, respondent is 21 arguing futility of amendment. Respondents points out that, aside from Claim 2 (the “self-defense” IAC claim), none of 22 23 the three proposed new claims were included in the January 2010 petition found timely by the 24 Ninth Circuit. Respondent contends that the Ninth Circuit’s finding that the petition was timely 25 due to equitable tolling applied to the January 2010 petition only, not to later-filed claims. 26 Moreover, respondent argues, none of the three new claims “relate back” to the original IAC 27 claim and so are not timely on that basis. The undersigned considers these arguments in reverse 28 order. 4 1 2 A. Relation back Under Rule 15(c)(2) of the Federal Rules of Civil Procedure, an amendment of a pleading 3 relates back to the date of the original pleading when “the claim or defense asserted in the 4 amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be 5 set forth in the original pleading.” The rule applies in habeas corpus proceedings. Mayle v. 6 Felix, 545 U.S. 644, 650 (2005); Anthony v. Cambra, 236 F.3d 568, 576 (9th Cir. 2000). In 7 Mayle, the United States Supreme Court held that relation back is in order if the claim to be 8 amended into the petition is tied to the original timely petition by “a common core of operative 9 facts.” Mayle, 545 U.S. at 664. Conversely, the claim does not relate back when it asserts a new 10 ground for relief supported by facts that differ in both “time and type” from those the original 11 pleading set forth. Id. at 650. The Mayle court expressly rejected the Ninth Circuit’s 12 interpretation of the rule that a claim relates back if it arises merely from the same judgment and 13 conviction. Id. at 656–657. “An amended habeas petition does not relate back . . . when it 14 asserts a new ground for relief supported by facts that differ in both time and type from those the 15 original pleading set forth.” Hebner v. McGrath, 543 F.3d 1133, 1138 (9th Cir. 2008) (quoting 16 Mayle, 545 U.S. at 650). 17 In Hebner, the Ninth Circuit applied the Mayle standard to a habeas petition. The court 18 held that the prisoner’s amended claims regarding improper jury instructions violating his due 19 process rights did not relate back to his original claim regarding the admission of a witness 20 testimony violating his due process rights because the two events were “separated in time and 21 type.” Hebner, 543 F.3d at 1138 (internal quotations omitted). The court explained that “the first 22 claim focus[ed] on the admission of evidence . . . [while] the later claim [focused] on the 23 instructions given to the jury, suggesting that they were separate occurrences.” Id. at 1139. 24 Moreover, “courts generally have declined to find that a newly added claim related back 25 when the original claim involved similar issues but was based on actions taken by different 26 people.” Whitehead v. Hedgpeth, 2013 WL 3967341, *5 (N.D. Cal. July 31, 2013) (collecting 27 cases); see, e.g., Lopez v. Runnels, CIVS–03–0543 JAM DAD P, 2008 WL 2383952 (E.D. Cal. 28 June 9, 2008) report and recommendation adopted, CIV S030543 JAM DAD P, 2008 WL 5 1 3200856 (E.D. Cal. Aug. 7, 2008) aff'd, 495 Fed. Appx. 855, at *18–19 (9th Cir. 2012) 2 (petitioner’s amended claim of ineffective counsel’s failure to interview witnesses who could 3 corroborate his claim of innocence did not relate back to petitioner’s original claim of insufficient 4 evidence to convict him since the original claim “stem[med] from the sufficiency of the evidence 5 introduced at trial” while his amended claim “stem[med] from other distinct aspects of his trial 6 and pre-trial proceedings.”). See also Morales v. Hedgpeth, No. 2:12-cv-0544 LKK KJN P, 2013 7 WL 5425153, *2 (Sept. 27, 2013) (claims in amended petition did not “relate back” to original 8 claim and thus were untimely absent equitable tolling). 9 Applying Mayle, the undersigned concludes that the facts in the three proposed new 10 claims differ in “time and type” from the facts in the self-defense IAC claim in the January 2010 11 petition. Nor does petitioner argue in his reply that the three new claims “relate back” to the 12 January 2010 petition under Mayle. Thus the new claims are not timely under the “relation back” 13 doctrine. 14 B. Equitable Tolling 15 16 17 18 19 20 21 22 23 24 The more involved argument concerns the Ninth Circuit’s finding that the January 2010 petition was timely due to equitable tolling. Specifically, the Ninth Circuit wrote: Chatman produced uncontroverted evidence demonstrating a long history of mental illness, including a report by a psychiatric expert, Social Security Administration disability records, and prison medical records. Chatman has been diagnosed with psychotic disorder, paranoid schizophrenia, alcohol-induced persisting dementia, alcohol abuse disorder, and antisocial personality disorder. The record also indicates that Chapman frequently suffers from depression and experiences auditory hallucinations. Moreover, the records show that Chapman has an IQ of 69 and the language skills of a third-grader. Chatman was heavily medicated during at least part of the filing period. According to the affidavits of Chatman and other inmates, Chatman was able to file motions and petitions, including his federal habeas petition, only with the assistance of other inmates. 25 (ECF No. 53 at 2.) Based on this record, the Ninth Circuit concluded that petitioner was entitled 26 to equitable tolling under Bills v. Clark, 628 F.3d 1092, 1100 (9th Cir. 2010). (Id. at 4.) 27 In analyzing the timeliness of the January 2010 petition, the relevant period was between 28 March 2007 and January 2010. (ECF No. 39 at 4.) Because petitioner lacked access to his legal 6 1 materials between March 2007 and November 2007, the period deemed equitably tolled due to 2 mental illness was between November 2007 and January 2010. (See id. at 6-7.) 3 While Claim 2 in the proposed second amended petition was included in the January 2010 4 petition, and therefore timely per the Ninth Circuit, the three new claims were filed in federal 5 court months or years later. Claim 1 was first raised in petitioner’s proposed amended petition in 6 December 2010.3 (ECF No. 22.) Claims 3 and 4 were first raised in petitioner’s proposed second 7 amended petition in July 2015. (ECF No. 64.) Respondent argues that the Ninth Circuit’s finding of equitable tolling between November 8 9 2007 and January 2010 does not apply to these later claims. “Petitioner is not entitled to an 10 additional eleven months of equitable tolling between the filing of his original and first amended 11 petitions, and his request for equitable tolling for an additional four and a half years after that is 12 absurd,” respondent asserts. (ECF No. 67 at 6.) 13 Petitioner counters that the conditions cited by the Ninth Circuit in its equitable tolling 14 analysis continued after January 2010, making the new claims timely under the Ninth Circuit’s 15 analysis. (ECF No. 68 at 3-5.) As to Claim 1, “[t]here is no reason . . . to believe that Chatman’s 16 severe mental health disorders and low IQ, and the Ninth Circuit’s equitable tolling finding, 17 would excuse the delay in Chatman filing his initial petition but not his [December 2010] petition 18 that was filed later that same year.” (Id. at 3.) As to Claims 3 and 4, petitioner argues that the 19 Ninth Circuit found that petitioner was incapable of litigating habeas claims on his own, and 20 counsel was not appointed to represent him until March 2015. (Id. at 4.) “Because it is now 21 undisputed that Chatman was unable to timely file a petition on his own (without the assistance of 22 other inmates), the Court should apply the same equitable tolling factors and principles to permit 23 the second amended petition that was promptly filed after recent appointment of counsel.” (Id. at 24 5.) 25 26 27 28 In Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010), the Ninth Circuit set forth a two-part test to determine a petitioner's eligibility for equitable tolling due to mental impairment: 3 Thus, Claim 1 in the proposed amended petition was effectively filed in December 2010 under the “relation back” doctrine. See Mayle, 545 U.S. at 659. 7 1 (1) First, a petitioner must show his mental impairment was an “extraordinary circumstance” beyond his control, by demonstrating the impairment was so severe that either 2 3 (a) petitioner was unable rationally or factually to personally understand the need to timely file, or 4 (b) petitioner’s mental state rendered him unable personally to prepare a habeas petition and effectuate its filing. 5 6 (2) Second, the petitioner must show diligence in pursuing the claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance. 7 8 9 Bills, 628 F.3d at 1099–1100 (internal citations omitted). Here, the Ninth Circuit’s order of remand indicates that the panel found petitioner “unable 10 11 personally to prepare a habeas petition and effectuate its filing” largely due to factors that were 12 not specific to the period between November 2007 and January 2010, but were longstanding 13 conditions: an extensive history of mental illness, multiple psychological disorders, substance 14 abuse issues, low IQ, and poor language skills. Moreover, the record of this action indicates that petitioner diligently pursued his federal 15 16 claims to the extent that he was able, attempting to raise and exhaust new claims during the 17 course of this action, and appealing an adverse judgment, on a pro se basis. After petitioner was 18 appointed counsel, he promptly asserted a new Batson claim (Claim 3) and a claim of cumulative 19 error (Claim 4). 20 Based on the Ninth Circuit’s finding of severe mental impairment and petitioner’s 21 demonstrated diligence, the undersigned concludes that petitioner’s new claims are timely under 22 the doctrine of equitable tolling as applied by the Ninth Circuit in this action. As amendment is 23 not futile, the undersigned will recommend that petitioner’s motion to amend be granted. 24 III. Motion to Stay As it contains both exhausted and unexhausted claims, the second amended petition is 25 26 “mixed.” Petitioner seeks a stay of this action pursuant to Rhines v. Weber, 544 U.S. 269 (2005) 27 while he exhausts Claims 1, 3 and 4 in the state supreme court. 28 //// 8 1 To obtain a Rhines stay of a mixed petition pending exhaustion of the unexhausted claims, 2 the petitioner must show that (1) the unexhausted claims are potentially meritorious; and (2) 3 petitioner had good cause for his earlier failure to exhaust state remedies.4 544 U.S. at 278. 4 A. Potential Merit Under Rhines, a district court abuses its discretion in granting a stay when petitioner’s 5 6 unexhausted claims are “plainly meritless.” 544 U.S. at 277; see also Cassett v. Stewart, 406 F.3d 7 614, 623-624 (9th Cir. 2005) (“We now join our sister circuits in adopting the Granberry5 8 standard and hold that a federal court may deny an unexhausted petition on the merits only when 9 it is perfectly clear that the applicant does not raise even a colorable federal claim.”). Having 10 reviewed the second amended petition, the undersigned finds petitioner’s unexhausted claims to 11 have sufficient potential merit to meet the first prong of the Rhines test. 12 B. Good Cause 13 Petitioner offers two reasons for failing to exhaust Claims 1, 3, and 4 earlier. The first is 14 petitioner’s incapacity to litigate the claims, including “mental conditions, limited language, and 15 low IQ,” as noted by the Ninth Circuit, and the fact that petitioner “did not have an attorney in 16 state habeas proceedings and filed his initial federal petition and first amended petition pro se 17 with the assistance of other inmates.” (ECF No. 66 at 5.) The second is that petitioner’s appellate 18 counsel rendered ineffective assistance in failing to present these claims on direct appeal. (Id.) 19 Rhines does not go into detail as to what constitutes good cause for failure to exhaust. 20 The Supreme Court has noted in dicta that “[a] petitioner’s reasonable confusion about whether a 21 state filing would be timely will ordinarily constitute ‘good cause’” to excuse his failure to 22 exhaust, Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), and the Ninth Circuit has held that a 23 showing of good cause does not require “extraordinary circumstances.” Jackson v. Roe, 425 F.3d 24 654, 661-62 (9th Cir. 2005). Recently, the Ninth Circuit noted that “[a]n assertion of good cause 25 without evidentiary support will not typically amount to a reasonable excuse justifying a 26 4 27 28 There is no indication that petitioner engaged in “intentionally dilatory litigation tactics,” the third Rhines factor. 544 U.S. at 278. 5 Granberry v. Greer, 481 U.S. 129, 135 (1987). 9 1 petitioner’s failure to exhaust.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). However, “a 2 reasonable excuse, supported by evidence to justify a petitioner’s failure to exhaust, will.” Id. 3 In Blake, the Ninth Circuit held that ineffective assistance of counsel by post-conviction 4 counsel can be good cause for a Rhines stay. Id. at 983. Moreover, “good cause under Rhines, 5 when based on IAC, cannot be any more demanding than a showing of cause under Martinez [v. 6 Ryan, --- U.S. 132 S. Ct. 1309 (2012)] to excuse state procedural default.” Id. at 983-84. In 7 Martinez, the Supreme Court held that “a prisoner may establish cause for a default of an 8 ineffective assistance claim” where his post-conviction counsel “was ineffective under the 9 standards of Strickland v. Washington, 466 U.S. 668 (1984)[.]” See also Coleman v. Thompson, 10 501 U.S. 722, 755 (1991) (“We reiterate that counsel’s ineffectiveness will constitute cause only 11 if it is an independent constitutional violation.”). 12 Here, whether or not petitioner’s appellate counsel rendered ineffective assistance as to 13 the unexhausted claims, the totality of circumstances cited by the Ninth Circuit – including 14 petitioner’s mental illness, retardation, incapacity to litigate, and lack of legal assistance – are 15 sufficient to show good cause for failing to exhaust these claims earlier. Thus the undersigned 16 will recommend that petitioner’s motion for a Rhines stay be granted. 17 Accordingly, IT IS HEREBY RECOMMENDED that: 18 1. Petitioner’s motion to amend (ECF No. 65) be granted; 19 2. Petitioner’s motion to stay this action pending exhaustion of state remedies as to new 20 21 22 23 24 claims in the second amended petition (ECF No. 66) be granted; 3. Petitioner be directed to file a request to lift the stay within thirty days of a decision by the California Supreme Court concluding state habeas review; and 4. The Clerk be directed to administratively close this case for purposes of case status pending exhaustion. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 27 after being served with these findings and recommendations, any party may file written 28 objections with the court and serve a copy on all parties. Such a document should be captioned 10 1 “Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner 2 may address whether a certificate of appealability should issue in the event he files an appeal of 3 the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 4 court must issue or deny a certificate of appealability when it enters a final order adverse to the 5 applicant). Any response to the objections shall be served and filed within fourteen days after 6 service of the objections. The parties are advised that failure to file objections within the 7 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 8 F.2d 1153 (9th Cir. 1991). 9 Dated: October 15, 2015 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 2 / chat0264.amend 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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