Douglas v. Hill et al, No. 3:2022cv00884 - Document 12 (S.D. Cal. 2022)
Court Description: ORDER Granting 3 Motion for Stay and Abeyance. The Court concludes that Douglas has met the criteria for a stay pursuant to Rhines. Accordingly, his Motion for Stay is GRANTED and the action is stayed. Douglas is DIRECTED to file a status report every ninety (90) days, beginning with the date of this Order, that details his progress toward exhaustion. He is also DIRECTED to file, within thirty (30) days of the California Supreme Courts resolution of his ineffective assistance of counsel c laim, a motion requesting that the stay be lifted and that leave to file a First Amended Petition pursuant to 28 U.S.C. § 2254 containing all his exhausted claims be granted. The Clerk of Court will administratively close this case until further Order of this Court. Signed by Judge Janis L. Sammartino on 10/13/2022. (All non-registered users served via U.S. Mail Service) (tcf)
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Douglas v. Hill et al Doc. 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PATRICK C. DOUGLAS, Case No.: 22-CV-00884 JLS (BGS) Petitioner, 12 13 v. ORDER GRANTING MOTION FOR STAY AND ABEYANCE 14 RICK HILL and ROB BONTA, Attorney General, State of California, (ECF Nos. 1, 3) 15 Respondents. 16 17 18 19 Patrick C. Douglas (“Petitioner” or “Douglas”) has filed a Petition for Writ of 20 Habeas Corpus (“Pet.,” ECF No. 1), as well as a Supplement thereto (“Pet. Supp.,” ECF 21 No. 4). Petitioner also filed a Motion for Stay and Abeyance (“Mot.,” ECF No. 3), and 22 Supplement thereto (“Mot. Supp.,” ECF No. 5). Respondents Rick Hill and Rob Bonta 23 (collectively, “Respondents”) filed an Opposition to Petitioner’s Motion (“Opp’n,” ECF 24 No. 9), and Petitioner filed a Reply to the Opposition (“Reply,” ECF No. 11). Having 25 considered the Petitioner’s Petition and Motion, the parties’ arguments and the law, the 26 Court GRANTS Douglas’s Motion for Stay. 27 /// 28 /// 1 22-CV-00884 JLS (BGS) Dockets.Justia.com 1 BACKGROUND 2 Following a jury trial, Douglas was convicted in San Diego Superior Court of two 3 counts of attempted murder, two counts of assault with a deadly weapon, one count of 4 assault with a deadly weapon on a peace officer, and one count of evading a peace officer 5 with reckless driving. See Lodgment No. 1 (ECF No. 10-1) at 47–52. His conviction was 6 affirmed by the California Court of Appeal, Fourth Appellate District, Division One on 7 October 30, 2020, id. at 62–75, and a Petition for Review he filed in the California Supreme 8 Court was denied on January 13, 2021, id. at 77. 9 Douglas constructively filed a Petition for Writ of Habeas Corpus and Motion for 10 Stay and Abeyance in this Court on June 11, 2022.1 See generally Pet; Mot. The one-year 11 statute of limitations imposed by the Anti-Terrorism and Effective Death Penalty Act 12 (“AEDPA”) expired two days later on June 13, 2022.2 The Petition raises two exhausted 13 claims, an insufficiency of the evidence claim, an improper jury instruction claim, and an 14 unexhausted ineffective assistance of trial counsel claim in which Douglas claims trial 15 counsel should have investigated and presented a diminished capacity defense. See Pet.; 16 see also Pet. Supp.; Mot.; Mot. Supp. On June 14, 2022, Douglas constructively filed a 17 habeas corpus petition in the San Diego Superior Court raising the unexhausted ineffective 18 assistance of counsel claim. ECF No. 10-1. 19 /// 20 /// 21 /// 22 23 1 24 25 A document filed by a prisoner is deemed filed at the moment the prisoner delivers it to prison authorities for forwarding to the clerk of court. Houston v. Lack, 487 U.S. 266, 276 (1988); Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000) (applying Houston to a pro se prisoner’s federal habeas petition and state court habeas petition). 26 2 27 28 The statute of limitations expired on June 12, 2022, which was a Sunday. See https://www.timeanddate.com/date/dateadd.html?d1=12&m1=6&y1=2022&. Under Fed. R. Civ. Pro. 6(a)(1)(C), if the last day of the period of limitation is a Saturday or Sunday, “the period continues to run until the end of the next day that is not a Saturday, Sunday or legal holiday.” Fed. R. Civ. Pro. 6(a)(1)(C). 2 22-CV-00884 JLS (BGS) 1 In his motion, Douglas seeks a stay pursuant to Rhines v. Weber, 544 U.S. 269, 278 2 (2005), in order to exhaust his ineffective assistance of counsel claim in state court. See 3 Mot.; Mot. Supp. In opposition to the Motion, Respondents argue Douglas has not shown 4 good cause for his failure to exhaust. See Opp’n; see also ECF No. 10-1. 5 DISCUSSION 6 In order to have their claims heard, habeas petitioners who wish to challenge their 7 state court conviction in federal court must demonstrate they have exhausted their state 8 court remedies and file their claims within the one-year statute of limitations. 28 U.SC. 9 §§ 2244(d), 2254(b)(1)(A); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). A petitioner 10 satisfies the exhaustion requirement by presenting a claim to a state’s highest court, either 11 on direct appeal or through state collateral proceedings. See Anderson v. Harless, 459 U.S. 12 4, 6 (1982); Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002). Once claims are 13 exhausted, a petitioner must bring those claims in a federal habeas corpus petition within a 14 one-year statute of limitation. 28 U.S.C. § 2244(d). 15 When a petitioner files a habeas corpus petition in federal court which contains both 16 exhausted and unexhausted claims, or only unexhausted claims, a district court has the 17 discretion to stay the petition while a petitioner returns to state court to exhaust the 18 unexhausted claims. Rhines, 544 U.S. at 275–76. Once a petitioner has exhausted the 19 claims, a district court lifts the stay and a petitioner may then proceed in federal court with 20 all his claims. Id. In order for a petitioner to be granted a Rhines stay, however, he or she 21 must establish: (1) good cause for the failure to exhaust, (2) the unexhausted claims are 22 potentially meritorious, and (3) he or she has not engaged in intentionally dilatory tactics. 23 Id. at 277–78. 24 I. Whether Douglas Has Established Good Cause 25 “The good cause element is the equitable component of the Rhines test . . . [and] [a]s 26 such, good cause turns on whether the petitioner can set forth a reasonable excuse, 27 supported by sufficient evidence, to justify th[e] failure [to exhaust].” Blake v. Baker, 745 28 F.3d 977, 982 (9th Cir. 2014). Since Blake, “[t]he caselaw concerning what constitutes 3 22-CV-00884 JLS (BGS) 1 ‘good cause’ under Rhines has not been developed in great detail.” Dixon v. Baker, 847 2 F.3d 714, 720 (9th Cir. 2017) (citing Blake, 745 F.3d at 980). In the Ninth Circuit, 3 however, a petitioner’s lack of counsel in state post-conviction proceedings is sufficient to 4 establish good cause under Rhines. Id. at 721. Some district courts interpreted Dixon as 5 requiring, in addition to a lack of counsel, a showing that the petitioner had commenced 6 state court exhaustion proceedings before coming to federal court. 7 McDowell, 292 F. Supp. 3d 983, 990 (C.D. Cal. Nov. 13, 2017); Sangurima v. 8 Montgomery, No. 2:17-cv-05022-PSG-KES, 2017 WL 7371168, *7 (C.D. Cal. Dec. 12, 9 2017); Reeves v. Madden, No. 3:19-cv-01886-WQH-RBB, 202 WL 65076, at *4 (S.D. Cal. 10 Jan 7, 2020). In Cage v. Montgomery, 812 Fed. App’x 679 (9th Cir. 2020),3 however, the 11 Ninth Circuit clarified that the distinction between petitioners who file state post- 12 conviction review petitions prior to filing their motion for stay in federal court and those 13 who do not is “immaterial” for purposes of determining whether a Rhines stay is warranted. 14 Cage, 812 Fed. App’x at 680. See Torres v. 15 In support of his Motion for Stay, Douglas states that his former appellate attorney, 16 Mary Wells, told him in March 2022 that she would assist him by preparing a basic state 17 court petition for writ of habeas corpus, “Stay and Abey” request, and federal petition for 18 writ of habeas corpus for him to file. Pet. at 5–6, 17; Pet. Supp. at 10, 12–13. According 19 to Douglas, Wells told him the Covid-19 pandemic had delayed her preparation of the 20 documents and he should “be patient as [she] prepares [his] state habeas petition.” Pet. at 21 9, 12. He alleges that due to his mental illness, his incarceration, and the Covid-19 22 protocols implemented in prison, which restricted his law library access, he relied on 23 Wells’s assurances. Id. When he still had not received those documents as of June 10, 24 2022, three days before his statute of limitations was to run out, he filed the Petition and 25 26 27 28 3 Pursuant to Ninth Circuit Rule 36-3(c), “[u]npublished decisions and orders of [the Ninth Circuit] issued on or after January 1, 2007 may be cited to the courts of this circuit in accordance with FRAP 32.1.” 4 22-CV-00884 JLS (BGS) 1 Motion for Stay in this case. Pet. at 5–6, 17; Pet. Supp. at 10, 12–13. Douglas finally 2 received the documents from Wells several days later. He filed the state petition for writ 3 of habeas corpus in San Diego Superior Court on June 14, 2022, see ECF No. 10-1, and 4 sent the federal habeas corpus petition and the Motion for Stay prepared by Wells to the 5 Court; those documents were filed as supplements to his Petition and Motion for Stay on 6 June 21, 2022. See Pet. Supp.; Mot. Supp. 7 In his Reply to Respondents’ Opposition, Douglas states he “did not fully understand 8 the legal issues presented nor the procedures for presenting my claims and could not have 9 investigated and pursued the claim on my own.” Reply at 3. In a declaration attached to 10 the petition for writ of habeas corpus Douglas filed in the San Diego Superior Court on 11 June 20, 2022, Wells states she has been assisting Douglas “on a pro bono basis and for 12 the limited purpose of seeing this petition filed but inadvertently let time pass.” ECF No. 13 10-1 at 97. 14 Douglas has “set forth a reasonable excuse, supported by sufficient evidence, to 15 justify [his] failure [to exhaust].” Blake, 745 F.3d at 982. First, the failure was a direct 16 result of Douglas’s reliance on Wells’s representations that she would assist him in 17 exhausting his claims in a timely manner. Douglas states he did not exhaust his ineffective 18 assistance of counsel claim earlier because he was following Wells’s admonition to “be 19 patient” while she prepared a state habeas petition and believed he would receive the 20 documents before the statute of limitations expired. See Pet. at 9, 12, 17; see also 21 Vanderwood v. Huston, No. 5:20-cv-02064-FLA-PD, 2021 WL 6103534, at *4–5 (C.D. 22 Cal. Oct. 20, 2021) (finding good cause under Rhines where petitioner relied on counsel’s 23 representation that the unexhausted claims would be exhausted before the statute of 24 limitations ran out). Moreover, Douglas’s mental health issues and incarceration 25 substantially interfered with his ability to understand and investigate his ineffective 26 assistance of counsel claim. Douglas’s original counsel, deputy public defender Tatiana 27 Kline, arranged for Douglas to be evaluated by Dr. David DeFrancesco after determining 28 a mental defense should be investigated. ECF No. 10-1 at 79–80. But a report was never 5 22-CV-00884 JLS (BGS) 1 generated, and therefore remained inaccessible to Douglas, because Douglas’s retained 2 attorney, Justin Murphy, did not follow up with DeFrancesco despite being told of the 3 evaluation by Kline. Id. at 79–80, 89–90. Further, Murphy refused to cooperate by 4 providing a declaration until May 2022 after Wells told him Douglas was filing a federal 5 habeas corpus petition. Id. at 108; see, e.g., Spicer v. Madden, No. 2:17-cv-07353-PA 6 (AFM), 2022 WL 2229936, at *12 (C.D. Cal. Feb. 2, 2022) (finding good cause under 7 Rhines where “pro se, indigent, incarcerated inmate with cognitive deficits . . . could not 8 have known about all of his viable ineffective assistance of counsel claims at the time he 9 filed his state court petitions” and the claims were “based upon evidence outside that record 10 that would be difficult, if not impossible, for Petitioner to obtain without the assistance of 11 counsel”). 12 Respondents argue Dixon does not apply to Douglas’s case because he “received 13 help from his state appellate counsel in investigating and preparing the petition he filed in 14 the state superior court” and was therefore not proceeding pro se. Opp’n at 4. It is clear 15 from Douglas’s filings in this case that Wells has assisted Douglas in preparing and filing 16 his state and federal petitions. Receiving help from an attorney on a pro bono basis, 17 however, is not the same as being represented by an attorney. A retained attorney has a 18 professional and legal obligation to adequately represent a petitioner in post-conviction 19 proceedings. See, e.g., Blake, 745 F.3d at 983 (finding that “ineffective assistance of 20 postconviction counsel [can] constitute good cause for a Rhines stay”). But an attorney 21 who is merely assisting a petitioner out of the goodness of her heart does not. All of the 22 petitions filed in state and federal court identify Douglas as proceeding pro se. See Pet. at 23 15; Mot.; Pet. Supp. at 9; Mot. Supp.; ECF No. 10-1 at 1. While Wells told Douglas she 24 would help him draft and obtain declarations and exhibits in support of his state habeas 25 petition, she does not represent him in those proceedings. See ECF No. 10-1 at 97. 26 Even if the Court concluded Wells was representing Douglas in his postconviction 27 proceedings, Douglas would still have met the “good cause” standard of Rhines. In Blake, 28 the Ninth Circuit held that “the ineffectiveness of postconviction counsel could constitute 6 22-CV-00884 JLS (BGS) 1 good cause for a Rhines stay, provided that the petitioner’s assertion of good cause ‘was 2 not a bare allegation of state postconviction [ineffective assistance of counsel], but a 3 concrete and reasonable excuse, supported by evidence.’” Dixon, 847 F.3d at 721 (quoting 4 Blake, 745 F.3d at 983). Here, Douglas has presented more than a “bare allegation” of 5 ineffectiveness of postconviction counsel. Dixon, 847 F.3d at 721; Blake, 745 F.3d at 983. 6 Wells admitted she told Douglas she would prepare his state habeas petition in a timely 7 manner. ECF No. 10-1 at 97. Douglas stated in his Petition he had not exhausted his claim 8 because he was following Wells’s admonition to “be patient” while she prepared a state 9 habeas petition to exhaust his ineffective assistance of trial counsel claim. See Pet. at 9, 10 12; Vanderwood, 2021 WL 6103534, at *4–5. Wells states in her declaration that Murphy 11 refused to respond to her questions and request for a declaration until May 26, 2022, when 12 he sent her an email saying he believed Douglas was competent and did not think a 13 diminished capacity defense was viable. ECF No 10-1 at 108. At that point, she could 14 have filed a state habeas corpus petition on Douglas’s behalf using the same evidence as 15 was presented in the state habeas petition filed on June 14, 2022: Murphy’s email, 16 DeFrancesco’s psychological evaluation, and the declarations from Douglas, Kline, and 17 DeFrancesco. See generally ECF No. 10-1. Instead, she “inadvertently . . . let time pass,” 18 which resulted in Douglas’s ineffective assistance of trial counsel claim being unexhausted 19 when his federal habeas corpus petition was due. ECF No. 10-1 at 97. This is sufficient 20 to show postconviction counsel’s representation fell below an objective standard of 21 reasonableness and that Douglas was prejudiced by counsel’s errors. See Strickland v. 22 Washington, 466 U.S. 668, 688 (1984). Douglas has presented a “concrete and reasonable 23 excuse, supported by evidence,” that post-conviction counsel was ineffective, and he has 24 therefore shown good cause under Rhines. Dixon, 847 F.3d at 721. 25 II. Whether the Claims are Potentially Meritorious 26 “A federal habeas petitioner must establish that at least one of his unexhausted 27 claims is not ‘plainly meritless’ in order to obtain a stay under Rhines.” Dixon, 847 F.3d 28 at 722 (citation omitted). “In determining whether a claim is ‘plainly meritless,’ principles 7 22-CV-00884 JLS (BGS) 1 of comity and federalism demand that the federal court refrain from ruling on the merits of 2 the claim unless ‘it is perfectly clear that the petitioner has no hope of prevailing.’” Id. 3 (quoting Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005)). 4 Although one of the victims and a witness did not identify Douglas as the perpetrator, 5 evidence that Douglas was the attacker was strong. The first victim identified her attacker 6 as “Patrick” who was driving a four-door Mercedes. ECF No. 10-1 at 65. “Patrick” told 7 her it was his birthday and showed her his driver’s license which showed a birthdate of 8 November 7, the date of the attack. Id. at 63–64. Shortly after the first stabbing, a second 9 stabbing was reported at a nearby 7-Eleven. Id. An officer responding to that incident saw 10 a light-colored Mercedes driving away from where the second victim was stabbed. Id. at 11 66. Douglas was eventually apprehended, and his blood was found on the trunk and the 12 steering wheel of the car. Id. at 67. Blood from the first victim was found on the passenger 13 side of the car, as well as Douglas’s phone and driver’s license. Id. Douglas had also 14 recorded a video of himself on his phone dated shortly after the first attack showing him 15 inside the car with a knife threatening to kill people. Id. The second stabbing victim 16 identified Douglas as the perpetrator. Id. at 20. Nevertheless, Murphy presented a 17 mistaken identity defense at trial. Id. at 20–21. 18 When Douglas’s first attorney Tatiana Kline interviewed him, Douglas told her 19 about his mental health issues. Id. at 79. This was later corroborated by Marsha Jackson, 20 an individual who had a power of attorney for Douglas, who told Kline that Douglas had 21 been “diagnosed [with] bipolar [disorder], was manic, experienced irresistible impulses, 22 and was not taking a prescribed mood stabilizer.” Id. Kline had Douglas evaluated by a 23 psychologist, DeFrancesco. Id. When Murphy, took over the case, Kline told Murphy 24 about the mental issues she saw with the case and about DeFrancesco’s evaluation; Murphy 25 never followed up.4 In addition Douglas claims Murphy told him “[his] history of mental 26 27 4 28 Kline states in her declaration that Murphy took over the case “before Dr. DeFrancesco had the opportunity to meet with Mr. Douglas, conduct testing, and review the medical records and reports 8 22-CV-00884 JLS (BGS) 1 disorders was not relevant to the case and that he couldn’t use [his] mental health history 2 at all.” Id. at 92. He also told Douglas he had merely “skimmed” his mental health records. 3 Id. at 93. Further, Murphy told Wells in an email that he found Douglas to be “mentally 4 competent,” and that “[i]n good faith, I did not believe that a diminished capacity defense 5 was appropriate.” Id. at 108. DeFrancesco ultimately diagnosed Douglas with Bipolar II 6 Disorder, Post Traumatic Stress Disorder (“PTSD”), and Intermittent Explosive Disorder. 7 Douglas told DeFrancesco he did not remember committing the acts that led to his arrest 8 and prosecution. See ECF No. 10-1 at 83, 85–86. 9 Douglas’s ineffective assistance of trial counsel claim is not “plainly meritless.” 10 Dixon, 847 F.3d at 722. Murphy did not investigate a mental health defense despite the 11 fact that both Douglas’s prior attorney and Douglas himself alerted him to it. Further, 12 Murphy does not appear to understand the difference between the defenses of diminished 13 capacity and diminished actuality. The defense of diminished capacity has been abolished 14 in California. See People v. Steele, 27 Cal.4th 1230, 1254 (2002). On the other hand, a 15 “[t]o support a defense of ‘diminished actuality,’ a defendant [must] present[] evidence of 16 voluntary intoxication or mental condition to show he ‘actually’ lacked the mental states 17 required for the crime.” People v. Clark, 52 Cal. 4th 856, 880, n.3 (2011) (citing People 18 v. Steele, 27 Cal. 4th 1230, 1253 (2002)). Given that the victims were random and not 19 known to Douglas, and that Douglas had an extensive and well-documented history of 20 mental health issues, Murphy should have investigated and presented a diminished capacity 21 defense, which could have persuaded the jury that he did not have the requisite intent for 22 the attempted murder convictions. 23 /// 24 25 26 27 28 necessary to generate a formal report.” ECF No. 10-1 at 80, 89. DeFrancesco states in his declaration and report, however, that he conducted a psychological interview with Douglas on November 13, 2017, and that Kline had provided him with Douglas’s medical and psychiatric records. Id. He also states in his declaration that he prepared a report, at Wells’s request, “based on [his] examination from November 13, 2017, and the records I reviewed . . . .” Id. at 89. It seems clear that DeFrancesco’s and not Kline’s recollection is correct. 9 22-CV-00884 JLS (BGS) 1 III. Whether Douglas Has Engaged in Intentionally Dilatory Tactics 2 Wells mailed the state habeas petition raising his ineffective assistance of counsel 3 claim to Douglas on June 8, 2022. Pet. Supp. at 13. Douglas constructively filed the 4 petition in the San Diego Superior Court five days later on June 14, 2022. See ECF No. 5 10-1. The California Court of Appeal website indicates Douglas filed a petition for writ of 6 habeas corpus in the California Court of Appeal for the Fourth Appellate District, Division 7 One, 8 https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=41&doc id=240368 9 2&doc no=D080954&request token=NiIwLSEmPkg%2FWzBRSCMtWE1IMEQ6Ukxb on September 22, 2022. See 10 KyJeIz9SMCAgCg%3D%3D (last visited 10/7/22). 11 Douglas has engaged in intentionally dilatory tactics, and the Court finds no basis in the 12 record upon which to conclude otherwise. Accordingly, the third requirement for granting 13 a Rhines stay has been met. Rhines, 544 U.S. at 277–78. 14 Respondents do not argue that CONCLUSION 15 Based on the foregoing, the Court concludes that Douglas has met the criteria for a 16 stay pursuant to Rhines. Accordingly, his Motion for Stay is GRANTED and the action is 17 stayed. Douglas is DIRECTED to file a status report every ninety (90) days, beginning 18 with the date of this Order, that details his progress toward exhaustion. He is also 19 DIRECTED to file, within thirty (30) days of the California Supreme Court’s resolution 20 of his ineffective assistance of counsel claim, a motion requesting that the stay be lifted 21 and that leave to file a First Amended Petition pursuant to 28 U.S.C. § 2254 containing all 22 his exhausted claims be granted. The Clerk of Court will administratively close this case 23 until further Order of this Court. 24 25 IT IS SO ORDERED. Dated: October 13, 2022 26 27 28 10 22-CV-00884 JLS (BGS)
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