Jay v. Curry, No. 4:2008cv00845 - Document 8 (N.D. Cal. 2009)
Court Description: ORDER GRANTING PETITIONER'S MOTION TO AMEND PETITION TO STRIKE EQUAL PROTECTION CLAIM; DENYING RESPONDENT'S MOTION TO DISMISS; REINSTATING ORDER TO SHOW CAUSE; AND APPOINTING COUNSEL FOR PETITIONER; DOCKET NO. 4 and 5; re 4 MOTION to Dism iss filed by Ben Curry, 5 Memorandum in Opposition filed by Matthew Adam Jay. Signed by Judge Claudia Wilken on 9/22/2009. (ls, COURT STAFF) (Filed on 9/22/2009) (Additional attachment(s) added on 9/22/2009: # 1 Certificate of Service) (ls, COURT STAFF).
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Jay v. Curry Doc. 8 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 MATTHEW ADAM JAY, ) ) Petitioner, ) ) v. ) ) BEN CURRY, Warden, ) ) Respondent. ) ___________________________ ) No. C 08-0845 CW (PR) ORDER GRANTING PETITIONER'S MOTION TO AMEND PETITION TO STRIKE EQUAL PROTECTION CLAIM; DENYING RESPONDENT'S MOTION TO DISMISS; REINSTATING ORDER TO SHOW CAUSE; AND APPOINTING COUNSEL FOR PETITIONER (Docket nos. 4, 5) 8 INTRODUCTION 9 Petitioner Matthew Adam Jay is a prisoner of the State of United States District Court For the Northern District of California 10 California who is incarcerated at the California Training Facility 11 in Soledad. He filed a pro se petition for a writ of habeas corpus 12 pursuant to 28 U.S.C. § 2254, challenging the constitutionality of 13 the denial of his parole by the California Board of Parole Hearings 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Board) in 2006. In an Order dated May 2, 2008, the Court ordered Respondent to show cause why the petition should not be granted. Petitioner has filed two other habeas actions in this Court. On November 12, 2008, the Court granted habeas relief in Case No. C 06-1795 CW (PR), in which Petitioner challenged the 2004 Board hearing and denial. Respondent in that action subsequently filed an appeal to the Ninth Circuit, which is still pending. In Case No. C 08-1998 CW (PR), Petitioner challenges the 2007 Board hearing and denial. The Court issued an order to show cause and appointed counsel to represent Petitioner in that case. Respondent filed a request for a stay of that petition pending the issuance of a decision in Hayward v. Marshall, 512 F.3d 536 (9th Cir.), reh'g en banc granted, No. 06-55392 (9th Cir. May 16, 2008). The Court denied Respondent's request and set another briefing schedule. Dockets.Justia.com United States District Court For the Northern District of California 1 In the present case, on September 2, 2008, Respondent filed a 2 motion to dismiss the petition, alleging that: (1) some of 3 Petitioner's claims were not properly exhausted at the state level; 4 and (2) even if they were exhausted, they are without merit and do 5 not warrant federal habeas relief. 6 October 10, 2008, Petitioner filed an opposition as well as a 7 motion for leave to amend the petition to strike his equal 8 protection claim as unexhausted. 9 2008, Respondent filed a reply. 10 filed a response to the reply. 11 (Mot. to Dismiss at 3-4.) (Opp'n at 2.) On On October 21, On November 6, 2008, Petitioner For the reasons discussed below, the Court GRANTS 12 Petitioner's motion to amend the petition by striking the equal 13 protection claim, DENIES Respondent's motion to dismiss the 14 petition as not fully exhausted, appoints counsel for Petitioner on 15 its own motion, and reinstates the Court's May 2, 2008 order to 16 show cause as to the now fully exhausted petition. 17 BACKGROUND 18 On March 13, 1987, Petitioner was convicted of one count of 19 second degree murder and one count of attempted murder. 20 1.) 21 On January 26, 2006, Petitioner appeared before the Board for his 22 seventh parole suitability hearing. 23 Petitioner unsuitable for parole. 24 (Pet. at He was sentenced to fifteen years to life imprisonment. (Id. at 6.) (Id.) The Board found (Id. at 16.) Petitioner challenged the Board's decision by filing a state 25 habeas petition in the Los Angeles County Superior Court, which 26 denied it on May 16, 2007. 27 Petitioner filed a state habeas petition in the California Court of 28 Appeal, which denied it on October 26, 2007. (Id. at 3.) 2 On October 23, 2007, (Pet., Ex. 9.) On United States District Court For the Northern District of California 1 November 5, 2007, Petitioner filed a petition for review in the 2 California Supreme Court, which denied it on January 3, 2008. 3 (Id., Ex. 10.) 4 Petitioner filed the present petition, alleging that: (1) the 5 commitment offense no longer constitutes "some evidence" of current 6 dangerousness (Claim One); (2) the Board violated his due process 7 rights by failing to consider his age at the time of the offense 8 (Claim Two); (3) the Board violated his due process rights by 9 failing to consider significant stress related to the offense 10 (Claim Three); and (4) he was denied equal protection under the law 11 (Claim Four).1 (Id. at 5.) 12 DISCUSSION 13 Respondent argues that not all of Petitioner's claims were 14 properly presented to the California Supreme Court. 15 opposition, Petitioner concedes that the equal protection claim is 16 unexhausted, and moves for leave to amend the petition to strike 17 that unexhausted claim. 18 Petitioner lists four grounds for relief. In his (Pet. at 5.) 19 Claims One through Three can be characterized as a single due 20 process claim. 21 California courts violated his right to equal protection under the 22 law by denying his petition. 23 (Id.) In Claim Four, Petitioner alleges the (Id. at 19.) In the motion to dismiss, Respondent describes Claim One as a 24 due process claim, which he concedes is exhausted. 25 Dismiss at 2.) (Mot. to Respondent then conflates Claims Two, Three and 26 27 28 1 In the petition, these claims are labeled "Claims I.C.(a) through I.C.(d)." For clarity, the Court will refer to them in this Order as Claims One through Four. 3 1 Four into one equal protection claim. 2 that Petitioner's composite equal protection claim is unexhausted 3 because he failed to raise it in the state courts before seeking 4 federal relief. 5 Respondent argues (Id. at 3.) Petitioner argues that Claims Two and Three, identified by 6 Respondent as part of his unexhausted equal protection claim, are 7 clearly part of his due process claim. 8 9 United States District Court For the Northern District of California (Id.) (Sur-reply at 2.) The Court finds unavailing Respondent's argument that Claims Two and Three should be considered as part of Petitioner's 10 unexhausted equal protection claim. 11 Petitioner labels Claims Two and Three as due process claims in 12 their titles. 13 states that "Petitioner's right to due process and equal 14 protection . . . was violated." In his federal petition, However, when describing these claims in detail, he (Id. at 27.) 15 Despite Petitioner mis-characterizing these claims as both 16 equal protection and due process claims in his federal petition, 17 the record demonstrates that he raised Claims Two and Three as due 18 process claims in state court. 19 Petitioner presented these claims initially under the umbrella of 20 his single due process claim that it was a "violation of 21 Petitioner's right to due process . . . when the Board of Parole 22 Hearings denied him parole absent 'some evidence' . . . ." 23 Ex. 2 at 5.) 24 equal protection and due process claims in his petition for review 25 before the California Supreme Court, stating: "Was it a violation 26 of due process and equal protection under the law for the [B]oard 27 (1) to not consider and weigh Petitioner's age at the time of the 28 commitment offense? and (2) failed to consider the significant In his state appellate petition, (Resp't Petitioner also labeled Claims Two and Three as both 4 United States District Court For the Northern District of California 1 stress he was under when he committed the offense?" 2 at 5.) 3 process violation based on the Board's failure to consider his age 4 and significant stress factors at the time of the offense. 5 5-6.) 6 Three being mis-labeled in the petition for review as equal 7 protection claims, his confused arguments will not defeat his 8 adequate efforts to assert his federal due process claim in state 9 court, particularly in light of his pro se status. (Resp't Ex. 1 However, in the body of his petition, he claimed a due (Id. at While Petitioner's confusion may have led to Claims Two and See Sandgathe 10 v. Maass, 314 F.3d 371, 378 (9th Cir. 2002) (neither confused 11 arguments nor poor lawyering will necessarily defeat a pro se 12 petitioner's otherwise adequate efforts to assert a federal claim 13 in state court). 14 state court may be read differently from counseled petitions. 15 Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 16 ("[T]he complete exhaustion rule is not to trap the unwary pro se 17 prisoner.") (citation omitted). 18 by counsel, a court should be able to attach ordinary legal 19 significance to the words used in that document." 20 When it has been written by a pro se petitioner, a court may need 21 to be more flexible. 22 999 (9th Cir. 2003) (petitioner's pro se status in state court was 23 a factor in favor of finding exhaustion where prisoner claimed 24 ineffective assistance of counsel but failed to cite federal 25 constitution or federal case law in support of his claim). 26 Petitioner "fairly presented" Claims Two and Three as part of his 27 federal due process claim in state court; therefore, the Court For purposes of exhaustion, pro se petitions in 2003) (en banc) "When a document has been written Id. at 1158. See, e.g., Sanders v. Ryder, 342 F.3d 991, 28 5 Here, 1 finds that they are exhausted and considers them as part of Claim 2 One, his exhausted due process claim. 3 Petitioner requests that the Court strike Claim Four, the 4 unexhausted equal protection claim. 5 "judicial economy," he does not wish to pursue Claim Four; 6 therefore, the Court should proceed with the remaining exhausted 7 due process claim. 8 United States District Court For the Northern District of California 9 He indicates that, for A federal district court must dismiss a federal habeas petition containing any claim as to which state remedies have not 10 been exhausted. 11 faced with a post-AEDPA mixed petition, such as the present 12 petition, the court must on its own motion provide the petitioner 13 an opportunity to amend the mixed petition by striking unexhausted 14 claims as an alternative to suffering dismissal. 15 Budge, 419 F.3d 1013, 1016 (9th Cir. 2005) (citing Rhines v. 16 Webber, 544 U.S. 269, 277 (2005)); Hunt v. Pliler, 384 F.3d 1118, 17 1125 (9th Cir. 2004); Olvera v. Giurbino, 371 F.3d 569, 573 (9th 18 Cir. 2004); James v. Pliler, 269 F.3d 1124, 1125-26 (9th Cir. 19 2001); 20 also Guillory v. Roe, 329 F.3d 1015, 1017-18 (9th Cir. 2003) (error 21 for district court to deny petitioner's motion to strike 22 unexhausted claims as an alternative to suffering dismissal). 23 Rose v. Lundy, 455 U.S. 509, 522 (1982). When Jefferson v. Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000); see Because Petitioner has asked to strike the unexhausted equal 24 protection claim, the Court construes his request as a motion to 25 amend the petition to delete that claim. 26 Petitioner's motion, strikes the unexhausted equal protection 27 claim, and reinstates the Court's May 2, 2008 order to show cause 28 as to the now fully exhausted petition. 6 The Court GRANTS The parties are directed 1 2 Because the Court has construed Claims Two and Three as part 3 of Petitioner's due process claim, it need not address Respondent's 4 alternative argument that the equal protection claims asserted in 5 Claims Two and Three are without merit and do not warrant habeas 6 relief. 7 United States District Court For the Northern District of California to abide by the briefing schedule outlined below. As discussed above, Petitioner has two prior habeas actions. 8 In both of these actions Petitioner is represented by Steve M. 9 Defilippis of Picone & Defilippis, APLC. Mr. Defilippis has 10 informed clerk's office staff that he is willing and able to accept 11 appointment on Petitioner's behalf because he is already familiar 12 with Petitioner's file. 13 The Sixth Amendment's right to counsel does not apply in 14 habeas corpus actions. 15 728 (9th Cir. 1986). 16 represent a habeas petitioner whenever "the court determines that 17 the interests of justice so require and such person is financially 18 unable to obtain representation." 19 decision to appoint counsel is within the discretion of the 20 district court. 21 1986); Knaubert, 791 F.2d at 728; Bashor v. Risley, 730 F.2d 1228, 22 1234 (9th Cir. 1984). 23 See Knaubert v. Goldsmith, 791 F.2d 722, The Court may, however, appoint counsel to 18 U.S.C. § 3006A(a)(2)(B). The See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. The Court finds that the appointment of Mr. Defilippis to 24 represent Petitioner is warranted in this action. 25 the interests of justice and good cause appearing, the Court on its 26 own motion appoints Mr. Defilippis to represent Petitioner. 27 28 Accordingly, in CONCLUSION 1. Petitioner's motion to amend the petition to strike 7 United States District Court For the Northern District of California 1 Claim Four, the unexhausted equal protection claim, (docket no. 5) 2 is GRANTED. 3 protection claim. Therefore, the Court strikes the unexhausted equal 4 2. Respondent's motion to dismiss (docket no. 4) is DENIED. 5 3. The Court on its own motion appoints Stephen M. 6 Defilippis (SBN 117292) of Picone & Defilippis, APLC of 625 North 7 First Street, San Jose, California 95112, to represent Petitioner 8 in this action. 9 pursuant to 18 U.S.C. § 3006A(d) and (e) via the Federal Public Petitioner's counsel should seek reimbursement 10 Defender's Office. 11 by the briefing schedule outlined below. 12 4. The Court directs Petitioner's counsel to abide The Court's May 2, 2008 order to show cause is 13 reinstated as to his due process claim, which includes Claims One 14 through Three. 15 Respondent is ordered to file an answer and supporting 16 documents within sixty (60) days from the date of this Order. 17 Respondent shall file with an answer a copy of all state records 18 that have been transcribed previously and that are relevant to a 19 determination of the issues presented by the petition. 20 If Petitioner's counsel wishes to respond to the answer, he 21 shall do so by filing a traverse with the Court and serving it on 22 Respondent within thirty (30) days of his receipt of the answer. 23 Should Petitioner's counsel fail to do so, the petition will be 24 deemed submitted and ready for decision thirty (30) days after the 25 date Petitioner's counsel is served with Respondent's answer. 26 5. The Clerk of the Court shall send a copy of this Order 27 to Petitioner's counsel, to Petitioner, to the Federal Public 28 Defender, and to Respondent. 8 1 6. 2 IT IS SO ORDERED. 3 This Order terminates Docket nos. 4 and 5. DATED: September 22, 2009 CLAUDIA WILKEN United States District Judge 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P:\PRO-SE\CW\HC.08\Jay0845.denyMTD(exh).wpd 9
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