Garcia v. McDowell, No. 5:2016cv05301 - Document 81 (N.D. Cal. 2021)
Court Description: ORDER DENYING MOTION FOR STAY; DENYING MOTIONS FOR APPOINTMENT OF COUNSEL; GRANTING MOTION FOR fourth EXTENSION OF TIME TO FILE TRAVERSE Signed by Judge Beth Labson Freeman on 5/17/2021. Traverse due by 7/16/2021. (tshS, COURT STAFF) (Filed on 5/17/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
Download PDF
<![CDATA[
Garcia v. McDowell Doc. 81 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 ESEQUIEL “PAUL” GARCIA, United States District Court Northern District of California Petitioner, 12 13 14 15 v. NEIL MCDOWELL, Warden, Case No. 16-05301 BLF (PR) ORDER DENYING MOTION FOR STAY; DENYING MOTIONS FOR APPOINTMENT OF COUNSEL; GRANTING MOTION FOR fourth EXTENSION OF TIME TO FILE TRAVERSE Respondent. (Docket Nos. 72, 76, 77, 79, 80) 16 17 18 19 Petitioner, a state prisoner proceeding pro se, filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court found the second amended petition, Dkt. No. 35 (“SAP”), 20 stated cognizable claims, and ordered Respondent to show cause why the petition should 21 not be granted. Dkt. No. 37. Respondent has filed an answer along with exhibits in 22 support. Dkt. Nos. 56-59. Petitioner was granted three extensions of time to file a 23 traverse. Dkt. Nos. 63, 65, 71. Before the Court is Petitioner’s motion for a stay, motions 24 for appointment of counsel, and a motion for a fourth extension of time to file his traverse. 25 Dkt. Nos. 72, 76, 79, 80. 26 27 28 BACKGROUND According to the second amended petition, Petitioner was found guilty by a jury in Dockets.Justia.com 1 Santa Clara County Superior Court of first-degree murder and aiding and abetting special 2 circumstance. SAP at 1, 2. Petitioner was sentenced on May 10, 2012, to life without the 3 possibility of parole. Id. at 1. Petitioner pursued a direct appeal as well as a concurrent petition for writ of habeas 4 5 corpus in the state courts without success. Id. at 3-6. Thereafter, Petitioner continued to 6 pursue various post judgment remedies in the state courts and with other entities. Id. at 7- 7 42. On September 15, 2016, Petitioner filed a letter, initiating this federal habeas action, 8 United States District Court Northern District of California 9 and five days later, a petition for writ of habeas corpus. Dkt. Nos. 1, 5. On January 20, 10 2017, the Court granted Petitioner’s motion for stay under Rhines v. Weber, 544 U.S. 269 11 (2005). Dkt. No. 22. 12 On January 16, 2019, the Court granted Petitioner’s motion to reopen the action, 13 and granted Petitioner leave to file a second amended petition. Dkt. No. 29. After two 14 extension of time, Petitioner filed a second amended petition on June 16, 2019. Dkt. No. 15 35. 16 The Court found the SAP stated the following cognizable claims for federal habeas 17 relief: (1) his rights under the Confrontation Clause was violated when the trial court 18 admitted both oral and written testimonial statements from non-testifying co-defendant, 19 Miguel Chaldez, id. at 1; (2) ineffective assistance of counsel for failure to investigate and 20 other failings, id. at 84, 119; (3-I) prosecutorial misconduct based on misrepresentation 21 and use of perjured testimony and false evidence, id. at 223, 326-329; (3-II) ineffective 22 assistance of trial and appellate counsel for failure to investigate, id. at 223, 395-398; (4) 23 juror misconduct due to outside influences and related ineffective assistance of counsel 24 claim, Dkt. No. 35-7 at 1, 27; (5) prosecutorial misconduct based on improper cross- 25 examination, id. at 52-53; (6) ineffective assistance of counsel for failing to conduct 26 reasonable pre-trial investigation into Fourth, Fifth and Sixth Amendment violations, id. at 27 81-82; (7) his conviction was based on less than proof beyond a reasonable doubt of each 28 2 1 and every element of the charged crime, id. at 175; (8) his counsel had a conflict of interest 2 that materially compromised the defense, id. at 195; (9) he was denied his right to retain 3 counsel of his choice, id. at 244; and (10) cumulative error, id. at 263. Dkt. No. 37 at 2. On June 19, 2020, Respondent filed an answer along with exhibits in support. Dkt. 4 5 Nos. 56-59. On November 16, 2020, Petitioner filed a motion to stay this habeas action 6 due to a pending hearing in state court for a Brady/Pitchess motion for discovery. Dkt. 7 No. 72 at 3-4. Respondent filed opposition to the motion for stay, Dkt. No. 75, and 8 Petitioner filed a reply, Dkt. No. 78.1 Petitioner also filed two motions requesting 9 appointment of counsel due to COVID-19, Dkt. Nos. 76, 80, and motion for a fourth 10 extension of time to file his traverse, Dkt. No. 79. United States District Court Northern District of California 11 DISCUSSION 12 13 A. Motion for Stay and Abeyance In his motion for stay, Petitioner states that there is a pending matter in state court 14 15 on a Brady/Pitchess motion for habeas discovery of peace officer records and a “motion 16 for discovery file reconstruction, missing discovery (beyond file reconstruction), and 17 reasonable access to that discovery.” Dkt. No. 72 at 4. Petitioner states that if evidence of 18 a Brady violation is found, then he may then need to move for a stay under Rhines, 544 19 U.S. 269, to essentially exhaust the new claim. Id. at 6. In opposition, Respondent asserts 20 that the request is unwarranted because all the claims in the SAP are exhausted and the 21 22 23 24 25 26 27 alleged discovery Petitioner seeks does not include Brady material. Dkt. No. 75 at 3-5. In reply, Petitioner refutes that there is “no Brady evidence to disclose,” that he needs to wait for a ruling from the trial judge on his discovery motion, and then time to review the actual documents before he can determine whether he will be able to raise a Brady claim. Dkt. No. 78 at 4, 8. 1 Petitioner filed a request for an extension of time to file a reply to Respondent’s opposition which is GRANTED. Dkt. No. 77. Accordingly, the reply filed on December 23, 2020, is deemed timely filed and will be considered. 28 3 1 The United States Supreme Court has held that a district court may stay mixed 2 habeas petitions to allow the petitioner to exhaust in state court. Rhines v. Weber, 544 U.S. 3 269, 277-78 (2005). Rhines requires a petitioner to show (1) “good cause” for his failure 4 to exhaust his claims in state court; (2) that his unexhausted claims are not “plainly 5 meritless”; and (3) that he has not engaged in “intentionally dilatory litigation tactics.” Id. 6 at 278. The district court’s discretion to stay a mixed petition is circumscribed by 7 AEDPA’s stated purposes of reducing delay in the execution of criminal sentences and 8 encouraging petitioners to seek relief in the state courts before filing their claims in federal 9 10 United States District Court Northern District of California 11 12 court. Id. at 277. Because the use of a stay and abeyance procedure has the potential to undermine these dual purposes of AEDPA, its use is only appropriate where the district court has first determined that there was good cause for the petitioner’s failure to exhaust the claims in state court and that the claims are potentially meritorious. Id. In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that “the 13 14 suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of 15 the good faith or bad faith of the prosecution.” Id. at 87. In sum, for a Brady claim to 16 17 18 19 20 21 22 succeed, petitioner must show: (1) that the evidence at issue is favorable to the accused, either because it is exculpatory or impeaching; (2) that it was suppressed by the prosecution, either willfully or inadvertently; and (3) that it was material (or, put differently, that prejudice ensued).2 Banks v. Dretke, 540 U.S. 668, 691 (2004); Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Evidence is material if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469-70 (2009). The 23 Supreme Court has since made clear that the duty to disclose such evidence applies even 24 when there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107 25 (1976), and that the duty encompasses impeachment evidence as well as exculpatory 26 27 2 For the purpose of Brady, the terms “material” and “prejudicial” have the same meaning. United States v. Kohring, 637 F.3d 895, 902 n.1 (9th Cir. 2011). 28 4 1 2 The Court finds Petitioner fails to satisfy the factors under Rhines to warrant a 3 second stay at this late stage in the proceedings. First of all, Petitioner was already granted 4 a stay that lasted two years, from 2017 to 2019, to pursue new and unexhausted claims, 5 such that his second amended petition, which contains numerous claims, is fully 6 exhausted. Furthermore, Petitioner is only able to speculate that the additional discovery 7 which he hopes to obtain contains Brady material. Even if it is shown that the prosecution 8 suppressed the discovery at issue, Petitioner has not identified the specific Brady evidence 9 10 11 United States District Court Northern District of California evidence, United States v. Bagley, 473 U.S. 667, 676 (1985). 12 13 14 that was favorable to his case or described how it was material, i.e., the result of the proceeding would have been different had the evidence been disclosed to the defense. For example, Petitioner seeks personnel files of the police officers involved in his case but fails to explain what information contained therein would have any effect on his trial. As Respondent points out, the testimony of these officers was minimal to none at trial, with two of the officers testifying to the authenticity of cell phone and computer records submitted at trial. Dkt. No. 75 at 4-5. In reply, Petitioner argues that there is evidence 15 impacting the credibility of these officers, i.e., impeachment evidence. Dkt. No. 78 at 6-7. 16 17 18 19 20 21 22 23 However, there is no showing that had this information been disclosed, the result of the proceedings would have been different. With respect to the “discovery reconstruction,” the record shows that the prosecution did provide the defense with another set of discovery and therefore, this ground cannot be a basis for a Brady suppression claim. Id. at 5-6. Petitioner asserts that this cannot be confirmed until the trial judge rules on his motion. Id. at 8. But this argument is an admission that Petitioner has yet to establish a Brady claim, and that he is merely speculating. Based on the foregoing, the Court finds Petitioner is not entitled to a second stay 24 based on what amounts to nothing more than a fishing expedition for a Brady claim, that 25 also depends wholly on whether the trial court grants his motion. The Court finds no good 26 cause for warranting further delay in this matter where Petitioner has already been granted 27 one opportunity to exhaust numerous claims. Accordingly, the motion for a stay is 28 5 United States District Court Northern District of California 1 DENIED. 2 B. Motion for Appointment of Counsel 3 Petitioner has filed two motions for appointment of counsel based on prison 4 conditions due to the COVID-19 pandemic, e.g., lockdowns, restricted law library access, 5 and quarantines. Dkt. No. 76, 80. Petitioner contracted the virus in December 2020, and 6 as of the filing of his latest motion for appointment of counsel, was recovering from the 7 virus but with lingering symptoms. Dkt. No. 80 at 7. The Sixth Amendment’s right to 8 counsel does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 9 722, 728 (9th Cir.), cert. denied, 479 U.S. 867 (1986). Unless an evidentiary hearing is 10 required, the decision to appoint counsel is within the discretion of the district court. Id. at 11 728; Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). 12 An evidentiary hearing does not appear necessary at this time. With regard to Petitioner’s 13 circumstances in contracting and recovering from COVID-19, it does not amount to an 14 exceptional circumstance warranting appointment of counsel. The Court notes that despite 15 his alleged challenges, Petitioner has been able to file several coherent briefs, indicating 16 his continued ability to prosecute this matter pro se. Accordingly, Petitioner’s motions for 17 appointment of counsel are DENIED without prejudice to the Court’s sua sponte 18 reconsideration should the Court later find an evidentiary hearing necessary following 19 consideration of the merits of Petitioner’s claims. 20 C. Motion for Extension of Time to File Traverse Petitioner has filed a motion for a fourth extension of time to file a traverse due to 21 22 restrictions to law library access and his recovery from COVID-19. Dkt. No. 79. Good 23 cause appearing, the motion is GRANTED. Petitioner shall file a traverse in the time 24 provided below. 25 /// 26 /// 27 /// 28 6 CONCLUSION 1 2 For the foregoing reasons, the Court orders as follows: 3 1. 4 5 6 7 for an extension of time to file a reply is GRANTED. Dkt. No. 77. 2. Petitioner’s motions for appointment of counsel are DENIED without prejudice. Dkt. Nos. 76, 80. 3. Petitioner’s motion for a fourth extension of time to file a traverse is 8 GRANTED. Dkt. No. 79. Petitioner shall file his traverse no later than sixty (60) days 9 from the date this order is filed. The matter will be deemed submitted on the date 10 United States District Court Northern District of California Petitioner’s motion for a stay is DENIED. Dkt. No. 72. Petitioner’s motion Petitioner’s traverse is due. 11 This order terminates Docket Nos. 72, 76, 77, 79, and 80. 12 IT IS SO ORDERED. 13 Dated: _May 17, 2021_____ ________________________ BETH LABSON FREEMAN United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 Order Denying Stay; Denying Appt. of Counsel; Grant EOT to File Trav P:\PRO-SE\BLF\HC.16\05301Garcia_deny-stay&mots.docx 26 27 28 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
