Letner v. Broomfield

• Decision Date: 18 October 2022
• Docket Number: 1:18-cv-01459-JLT
• Parties: RICHARD LACY LETNER, Petitioner, v. RON BROOMFIELD, Warden of San Quentin State Prison, Respondent.[1]
• Court: U.S. District Court — Eastern District of California

RICHARD LACY LETNER, Petitioner,
v.
RON BROOMFIELD, Warden of San Quentin State Prison, Respondent.^[1]

No. 1:18-cv-01459-JLT

United States District Court, E.D. California

October 18, 2022

DEATH PENALTY CASE

ORDER DENYING PETITIONER'S MOTION TO LIFT STAY AND EXCUSE EXHAUSTION (DOC. 64)

Petitioner has moved the Court to lift the stay of this federal proceeding for exhaustion, which was designed to allow him to exhaust his second state habeas petition.^[2] He asks also for the Court to declare those state claims exhausted or to excuse exhaustion because, he argues, there is no available state corrective process or that process is ineffective. For the reasons set forth below, Petitioner's motion is DENIED without prejudice.^[3]

I. BACKGROUND

Petitioner and co-defendant Christopher Tobin were convicted in Tulare County of first-degree murder with special circumstances of murder committed in the course of burglary, attempted rape and robbery, as well as robbery, burglary, attempted rape, and theft of an automobile, all arising from the

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March 1988 stabbing death of 59-year-old Ivon Pontbriant.^[4] Petitioner and Tobin were sentenced to death and to consecutive prison terms for the non-capital offenses.

The California Supreme Court affirmed Petitioner's direct appeal of his conviction and sentence. People v. Letner and Tobin, 50 Cal.4th 99 (2010), rehearing denied Sep. 15, 2010, certiorari denied Apr. 18, 2011, Letner v. California, 563 U.S. 939. It also summarily denied Petitioner's state habeas petition. In re Richard Lacy Letner, Case No. S151222.

On October 23, 2018, Petitioner began this proceeding pursuant to 28 U.S.C. § 2254 by filing requests for appointment of counsel and to proceed in forma pauperis. The Court appointed counsel for Petitioner, and on December 19, 2019, he timely filed a 586-page initial federal petition stating 43 claims including subclaims, supported by 31 exhibits.

II. DISCUSSION

Petitioner argues that the state habeas process is unavailable or ineffective as to his second state habeas petition pending in the Tulare County Superior Court, such that: (1) the state claims should be deemed exhausted or excused from exhaustion, (2) the exhaustion stay in this proceeding should be lifted, and (3) the state claims should be reviewed de novo by this Court. (See Doc. 64 at 5-7 citing 28 U.S.C. § 2254(b)(1)(B)(i)(ii); O'Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999) (the exhaustion doctrine turns on an inquiry into what procedures are “available” under state law); see also Doc. 64-1 at Ex's 2-4 citing Harris v. Reed, 489 U.S. 255, 268 (1989) (O'Connor, J., concurring) (“[I]n determining whether a remedy for a particular constitutional claim is “available,” the federal courts are authorized, indeed required, to assess the likelihood that a state court will accord the habeas petitioner a hearing on the merits of his claim.”); Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001) (exhaustion satisfied where the state courts would not afford petitioner a hearing on the merits of his unexhausted claims); Coe v. Thurman, 922 F.2d 528, 530-531 (9th Cir. 1990) (excessive delay, denying due process, may excuse exhaustion).)

Petitioner argues that the Tulare County Superior Court refused to appoint his federal counsel as state habeas counsel; refused to rule on his second state habeas petition within the period provided

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by state law; and will not reach the merits of his state claims without excessive delay given the absence of any sufficient state habeas funding mechanism. Petitioner states that:

1. The Tulare County Superior Court, on October 8, 2020 denied his request that federal habeas counsel be appointed to represent him in the state exhaustion proceeding

2. The Tulare County Superior Court assigned Petitioner's second state exhaustion petition filed there on January 27, 2021 to Porterville Branch Presiding Judge Anthony Fultz on September 16, 2021; Judge Fultz has taken no action on the petition, even though state law requires a ruling within sixty days of filing. (Doc. 64 at 4-8; see also Doc. 64-1 at 3-6; Penal Code § 1509; California Rule of Court 4.571.)^[5]

3. Judge Fultz has not ruled on Petitioner's March 10, 2022 motion for a ruling on the second state exhaustion petition. (Doc. 64 at 4.)

4. The Tulare County Court Manager, on June 20, 2022, advised Petitioner's counsel that Judge Fultz is looking at the petition when he can; that Judge Fultz has a full load as presiding judge and is short-staffed; and that to her knowledge Tulare County was not provided with any meaningful training or funding for cases such as this one, which prior to Proposition 66 were handled entirely by the California Supreme Court. (See Doc. 64 at 4-5; Doc. 64-1 at 6.)^[6]

5. California has not provided its counties sufficient funding for appointment of habeas counsel and exhaustion litigation. (Doc. 64 at 8; see also Doc. 64-1 at 6.)

Respondent opposes Petitioner's motion. He concedes the state court has been slow to proceed on Petitioner's second habeas petition but argues that the delay is not so great-and the delay in the future is speculative-as to render the state habeas corrective process either unavailable or ineffective for purposes of 28 U.S.C. § 2254(b)(1)(B)(i)(ii), or to constitute a violation of due process. (See Doc. 67 at 2.) Respondent argues the state's multi-level habeas corrective process (i.e., superior court, appeal court, supreme court) remains available to Petitioner. (Doc. 67 at 3-4, 11 citing Boerckel, 526 U.S. at 845 (a petitioner must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the state's established appellate review process); Baldwin v. Reese, 541 U.S. 27, 29 (2004) (same); In re Friend, 11 Cal. 5th 720, 725-26 (same) (2021); cf. Woodfordv. Ngo, 548 U.S. 81, 92-93 (2006) (procedurally defaulted claim deemed exhausted where state remedies no longer available); Shinn v. Ramirez, 142 S.Ct. 1718, 1732-33 (2022) (discussing

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procedurally barred claims as technically exhausted and excused from procedural default). For example, Respondent argues that Petitioner yet may seek relief from any delay in the Tulare County Superior Court by applying to the state's court of appeal and supreme court. (See Doc. 67 at 8 citing Briggs v. Brown, 3 Cal. 5th 808, 834 (2017), as modified on denial of reh 'g Oct. 25, 2017 (Proposition 66 “does not deprive the appellate courts of their original writ jurisdiction, which they may exercise in appropriate circumstances”), and Penal Code § 1509(a) (if the petition is filed in a court other than the one that imposed judgment, then the petition “should” be transferred to that court “unless good cause is shown for the petition to be heard by another court”).)

Respondent argues that any failure of the Tulare County Superior Court to rule on Petitioner's second state habeas petition within 60 days of filing is not evidence of an unavailable or ineffective corrective process because the 60-day timeline relied upon by Petitioner is merely directory and may be departed from when consistent with a fair adjudication and principles of comity. (Doc. 67 at 5, 10 citing Penal Code § 1509; Briggs, 3 Cal.5th at 823, 860-61; see also Doc. 67 at 7 citing Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (exhaustion serves to minimize friction between our federal and state systems of justice by allowing the state an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights).)

Respondent argues also that Petitioner offers only speculation that a lack of state funding caused the Tulare County Superior Court to deny appointment of federal counsel to the state habeas proceeding. He observes there is no constitutional right to counsel on post-conviction review. (See Doc. 67 at 1113 citing Coleman v. Thompson, 501 U.S. 722, 752 (1991) (no constitutional right to appointed counsel on collateral review). He suggests the Tulare County Superior Court may have viewed the federal appointment as applicable in the current state exhaustion proceedings. (See id., citing Harbison v. Bell, 556 U.S. 180, 190 n.7 (2009)); see also 18 U.S.C. § 3599(e) (federal counsel may represent a condemned state inmate through “other appropriate motions and procedures”).)

Respondent argues that Petitioner has not demonstrated prejudice from delay in the state corrective habeas process. (See Doc. 67 at 8 citing Coe, 922 F.2d 528, 531-32 (9th Cir. 1990), quoting Barker v. Wingo, 407 U.S. 514, 530 (1972) (the prejudice analysis focuses upon the possibility the defense will be impaired).) Respondent argues that Petitioner has not proffered anything to suggest

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that the relatively brief state court delay in ruling on his second exhaustion petition has or will impair any particular claim for relief, or threatened execution of his death sentence prior to claim resolution. (Doc. 67 at 9 citing Coe, 922 F.2d at 532 citing Barker, 407 U.S. at 532 (courts generally consider three factors when determining prejudice from delay in post-conviction relief, (1) oppressive incarceration pending appeal, (2) anxiety and concern of the accused awaiting the outcome of the appeal, and (3) the possibility that grounds for appeal or defense upon any retrial will be impaired); United States v. Antoine, 906 F.2d 1379, 1383 (9th Cir. 1990) (remand to district court to determine whether, under Coe, Petitioner has shown prejudice by particularized anxiety or impairment of his case).)

It is settled that:

Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a petitioner has exhausted the remedies available in state court. Exhaustion requires that the petitioner's contentions were fairly presented to the state courts, Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011), and disposed of on the merits by the

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