Jaffe v. Brown
| Decision Date | 25 October 2012 |
| Docket Number | No. C 05-4439 PJH,C 05-4439 PJH |
| Parties | STEVEN JAFFE, Petitioner, v. EDMUND G. BROWN, JR., Governor, MATTHEW KRAMER, Warden, Respondent. |
| Court | U.S. District Court — Northern District of California |
Petitioner Steven Jaffe's motion for a stay and/or an abeyance is currently before the court. Having reviewed the parties' papers, the record, and having carefully considered their arguments and the relevant legal authorities, the court GRANTS the motion.
On November 1, 2005, Jaffe filed a pro se habeas petition with this court. At the time that Jaffe filed the petition, he was in state custody. The case was assigned to the Honorable Martin Jenkins. On March 21, 2006, Judge Jenkins issued an order to show cause, noting that Jaffe's petition raised eleven claims for relief. Subsequently, after the petition was fully briefed, on April 7, 2008, the case was reassigned to the undersigned judge. On March 30, 2009, the court denied Jaffe's petition, including all eleven claims for relief, and on July 24, 2009, denied Jaffe's request for a certificate of appealability ("COA").
Jaffe appealed, and on November 17, 2010, the United States Court of Appeals for the Ninth Circuit granted a COA on four issues, including a Confrontation Clause claim that was not addressed in Judge Jenkins' order to show cause or in the undersigned judge's March 30, 2009 order denying the habeas petition or in the state court petitions that preceded this federal action. On April 4, 2012, the Ninth Circuit affirmed in part and reversed in part. It affirmed on all three of the four issues that had been addressed and denied by this court in its March 30, 2009 order. However, the Ninth Circuit perceived a Confrontation Clause claim in Jaffe's November 1, 2005 petition that neither Judge Jenkins nor this court addressed, and concluded that although the claim was not "fairly presented" to the state courts and it was not entirely clear that Jaffe "raised"1 such a claim before this court, it was nevertheless "sufficiently argued" in the papers before this court to warrant further proceedings.
The Ninth Circuit further suggested that it found the Confrontation Clause claim to be potentially meritorious, noting that it was "exceedingly troubled by Confrontation Clause implications that arise from the admission of [Officer David] Miller's preliminary hearing testimony at trial," but that it was unable to reach the merits of the claim because Jaffe had not exhausted it before the state appellate courts. While concluding that the claim was not exhausted, the Ninth Circuit remanded the matter for this court to "determine in the first instance whether any California procedure remains available to Jaffe for raising [the Confrontation Clause claim]," and if so to "exercise its discretion to determine whether Jaffe's petition should be stayed pursuant to either of the procedures outlined in King [v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009)]."
Subsequently, on June 19, 2012, the court granted petitioner's motion to appoint counsel and ordered the parties to address: (1) whether any state procedure remains available that would allow petitioner to exhaust the Confrontation Clause claim in the California courts; and (2) if such a procedure does exist, whether proceedings in this case should be stayed to allow petitioner to exhaust.
In response, Jaffe filed a motion for a stay and/or abeyance of the instant federal habeas proceeding so that he is able to exhaust the Confrontation Clause claim before the state courts. The state opposed the motion, and Jaffe filed a reply.
A. Jaffe's Motion
Jaffe argues that he may file a motion to recall the remittitur with the state appellate courts allowing him to raise and exhaust the Confrontation Clause claim. In his opening papers, Jaffe seemed to suggest that he could exhaust the Confrontation Clause claim by raising an ineffective assistance of counsel claim in the context of a motion to recall the remittitur.
In opposition, the state argues that a motion to recall the remittitur is no longer available to Jaffe because he was discharged from state custody on April 20, 2010, and that under state law, the judgment has therefore expired, rendering relief no longer available. The state asserts that typically, under state law, a habeas petition may be treated as a motion to recall the remittitur, or vice versa, and suggests that the state courts would treat any motion to recall the remittitur filed by Jaffe as a habeas petition. However, it argues that now that Jaffe is no longer in state custody, habeas relief is not available under state law. See People v. Villa, 45 Cal.4th 1063 (2009). Additionally, the state suggests that the state courts would not permit Jaffe's motion to recall the remittitur because he cannot demonstrate to the state courts that he exercised due diligence, arguing that there was nothing to bar Jaffe from filing a habeas petition before the state courtsraising the Confrontation Clause claim before now.
The state also construes Jaffe's opening motion as suggesting that he would raise an ineffective assistance of counsel claim - as opposed to a Confrontation Clause claim - before the state courts. The state asserts that to do so would not actually constitute "fair presentation" of the Confrontation Clause claim found by the Ninth Circuit for federal habeas exhaustion purposes. It notes that an ineffective assistance of counsel claim and the Confrontation Clause claim require proof of different elements.
In reply, Jaffe counters that a motion to recall the remittitur is indeed available, and that criminal judgments do not "expire" under state law. Jaffe acknowledges that a state petition for writ of habeas corpus is unavailable because he is no longer in custody. However, he contends that the same custody restriction does not apply to a motion to recall the remittitur, and that a motion to recall the remittitur is not simply another name for a habeas petition, but instead constitutes a distinct remedy. He argues that it is not apparent that the state courts would apply the custody requirement of habeas petitions to a motion for recall, and suggests that the decision whether or not to do so is up to the state courts - and not for this court to speculate.
Jaffe further counters that there is no fixed time limit for bringing a motion to recall the remittitur before the state courts, and that this court should not speculate that the state courts would deny the motion for lack of diligence. He contends that at every stage in which he was in control of the proceedings - including his pro se federal habeas petition - he raised the Confrontation Clause claim. He asserts that it was only when court-appointed counsel filed his state court appeal that the claim was not raised.
Jaffe then clarifies that the basis on which he will seek recall of the remittitur is that his counsel provided ineffective assistance when he failed to perfect a potentially meritorious claim. However, he states that the "good cause" for seeking to reopen the appeal, or "the substantive matter that the state court [will be] asked to consider is the Confrontation Clause claim." Reply at 7 n.7. He thus asserts that the state is mistaken thathe intends to present the ineffective assistance of counsel claim as his constitutional claim on appeal assuming the motion for remittitur is granted. Instead, he clarifies that the ineffective assistance of counsel claim will constitute his proffered grounds for why the state should recall remittitur, but that, assuming the motion is granted, on appeal, he would raise the Confrontation Clause claim. Nevertheless, for exhaustion purposes, Jaffe argues that the litigation of a motion to recall the remittitur raising an ineffective assistance of counsel claim would be adequate on its own to "exhaust the underlying substantive claim, here, the Confrontation Clause claim."
In sum, Jaffe contends that the possibility that the state court will reopen the appeal is enough reason for this court to stay and abey the pending petition.
Normally, when this court grants a motion for a stay or abeyance, the petitioner is still in custody and presents the claim to the state court for exhaustion purposes via a state habeas petition. Here, though, since Jaffe is now out of custody, effective April 2010, both parties agree that state habeas proceedings are currently unavailable to him. See Villa, 45 Cal.4th at 1068, 1071 ().
The alternative procedure is a motion to recall remittitur, which is "a unique California post-conviction remedy whereby the petitioner asks the Court of Appeal or Supreme Court to reassert its jurisdiction over a case after it has relinquished that jurisdiction by issuing a remittitur following the final determination of the appeal." See Hayward v. Stone, 496 F.2d 844, 845-46 (9th Cir. 1974) (citations omitted). "Though traditionally the use of an application to recall the remittitur has been limited, its scope has been so broadened in recent years that the motion to recall serves functions similar to those of certiorari and habeas corpus in the field of post-conviction review." Id.
Whether or not to recall the remittitur is up to the appellate court's discretion. Id. Typically, California appellate courts have held that a motion to recall remittitur may be used on the basis of fraud or a mistake in fact that resulted in a miscarriage of justice. See In re Martin, 58 Cal.2d 133, 139 (1962). A remittitur...
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