Patterson v. Runnels
| Citation | 288 F.Supp.2d 1092 |
| Decision Date | 06 October 2003 |
| Docket Number | No. CV 03-5465-RGK(CT).,CV 03-5465-RGK(CT). |
| Parties | Trynun PATTERSON, Petitioner, v. David L. RUNNELS, Warden Respondent. |
| Court | U.S. District Court — Central District of California |
Michael Ellis Gaston, Michael E Gaston Law Offices, Long Beach, CA, for Trynun Patterson, petitioner.
Marc Aaron Kohm, CAAG—Office of Attorney, General of California, Los Angeles, CA, for Ernest Roe, California Department of Corrections, respondent.
ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY AND MOTION TO STAY
Pursuant to 28 U.S.C. section 636, the court has reviewed the entire file de novo, including the magistrate judge's report and recommendation and petitioner's objections.
In his objections, petitioner, who has been represented by counsel in this case and in case number CV 03-3273, asserts that he still should have the opportunity to object to the magistrate judge's July 16, 2003 report and recommendation, which concluded that claims one and four were unexhausted. However, petitioner already had this opportunity. On July 24, 2003, petitioner filed a response to the July 16, 2003 report and recommendation in case number CV 03-3273. Significantly, in this response petitioner conceded that claims one and four were unexhausted. Petitioner requested that "the petition not be dismissed[,]" and that "the three exhausted claims and the petition itself be held in abeyance until the unexhausted claims can be filed and heard in the California [c]ourts." Petitioner stated that "either the two unexhausted claims will be exhausted in the state court, or they will be procedurally barred."
Petitioner now asserts that claims one and four were exhausted. His objection is untimely as case number CV 03-3273 is closed, and for the reasons set forth in the magistrate judge's July 16, 2003 report and recommendation, the court disagrees.
Petitioner also objects to the magistrate judge's denial of his request to hold his second petition in abeyance while he exhausted claims one and four in the California Supreme Court. For the reasons set forth in the magistrate judge's September 10, 2003 report and recommendation in this case, which incorporates the magistrate judge's August 28, 2003 order denying petitioner's request to stay and abey his second petition, the court denies petitioner's motion to stay and abey.
Petitioner states that he has no objection to the magistrate judge's ruling that the court below erred in imposing concurrent sentences for robbery and conspiracy to commit robbery. However, the magistrate judge did not make any such ruling.
The court agrees with the magistrate judge's recommendation.
IT IS ORDERED:
1. The report and recommendation is accepted.
2. Petitioner's motion to stay and abey is denied.
3. Judgment shall be entered consistent with this order.
4. The clerk shall serve this order and the judgment on all counsel or parties of record.
This report and recommendation is submitted to the Honorable R. Gary Klausner, United States District Judge, pursuant to the provisions of 28 U.S.C. section 636 and General Order 01-13 of the United States District Court for the Central District of California. For the reasons discussed below, it is recommended that the petition be DENIED AND DISMISSED WITH PREJUDICE.
On May 9, 2003, petitioner, in state custody and represented by counsel, filed a federal petition for writ of habeas corpus ("first federal petition") in Case Number CV 03-3273-RGK (CT). On June 6, 2003, respondent filed a motion to dismiss ("motion to dismiss") that argued the petition should be dismissed because it contained two unexhausted grounds. The motion to dismiss described the process to request that a federal petition containing both exhausted and unexhausted grounds ("mixed petition") be stayed and abeyed ("the stay and abey procedure") pending exhaustion of petitioner's grounds in state court. See Ford v. Hubbard, 330 F.3d 1086 (9th Cir. 2003). On July 17, 2003, a report and recommendation was filed recommending dismissal without prejudice for failure to exhaust state court remedies. The July 17, 2003 report and recommendation also described the stay and abey procedure. On July 24, 2003, petitioner filed a response that argued the two grounds in fact were exhausted and requested that the petition be held in abeyance while petitioner presented the two unexhausted grounds in the California Supreme Court. On July 25, 2003, the court denied petitioner's request, advising petitioner it did not have discretion to stay petitioner's mixed petition. The court again advised petitioner about the stay and abey procedure and the court warned petitioner that, according to respondent, he had until approximately July 30, 2003 to timely file a fully exhausted federal petition for writ of habeas corpus under the applicable statute of limitations. See The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1). On July 29, 2003, judgment was entered dismissing the mixed petition without prejudice.
That same day, July 29, 2003, petitioner, again in state custody and represented by counsel, filed a timely second federal petition for a writ of habeas corpus ("second federal petition"), which was assigned Case Number CV 03-5465-RGK (CT)1. The second federal petition contains petitioner's three exhausted grounds. Petitioner concurrently filed a motion to hold the second petition in abeyance while he exhausted his other two grounds in the California Supreme Court ("motion to stay"). On August 25, 2003, respondent filed a return ("return") and an opposition to the motion to stay. On August 28, 2003, the court denied petitioner's motion to stay. On September 9, 2003, petitioner filed a traverse ("traverse").
On June 27, 2000, a jury convicted petitioner of two counts of robbery, conspiracy, and first degree murder in violation of California law.
On November 30, 2000, petitioner filed an appeal in the California Court of Appeal, raising the following grounds:
1. The trial court erred in denying petitioner's motion to suppress evidence on the grounds that petitioner's arrest was unlawful;
2. The trial court erred in denying petitioner's in limine motion to exclude his extrajudicial statements on the grounds that Miranda2 warnings were required at their inception, the statement was involuntary and the post-Miranda statement was otherwise coerced and involuntary;
3. The trial court erred in instructing the jurors pursuant to CALJIC No. 17.41.1 that they were obligated to report to the trial court any "improper" thoughts expressed by any juror during deliberations; and,
4. The sentences on Counts 2 and 6 must be stayed pursuant to California Penal Code section 654.
(Mot. to Dismiss, Ex. B at 27-28.) On September 25, 2001, the court of appeal affirmed the judgment and corrected petitioner's sentence in a partially published opinion. (Mot. to Dismiss, Ex. C.)
On October 29, 2001, petitioner filed a petition for review in the California Supreme Court, raising the following grounds:
1. Petitioner was arrested illegally and his subsequent confession should be suppressed; and,
2. The jurors were unconstitutionally instructed with CALJIC No. 17.41.1.
(Mot. to Dismiss, Ex. D at 105.) On December 19, 2001, the California Supreme Court granted the petition for review and noted that "[f]urther action on the matter is deferred pending consideration and disposition of a related issue in People v. McKay...." (Mot. to Dismiss, Ex. E.) After the California Supreme Court's decision in People v. McKay, 27 Cal.4th 601, 117 Cal.Rptr.2d 236, 41 P.3d 59 (March 4, 2002), on May 1, 2002, the California Supreme Court issued another order regarding petitioner's petition for review that dismissed the petition and remanded the "cause" to the court of appeal. (Mot. to Dismiss, Ex. F.) On May 8, 2002, the court of appeal closed the case and issued the remittitur.
Petitioner did not seek collateral review in the California courts.
The first and second federal petitions followed.
In his first federal petition, petitioner raised the following grounds:
1. Trial counsel was constitutionally ineffective for failing to argue that petitioner's statements were the product of improper police coercion;
2. Petitioner's arrest was unlawful;
3. Evidence that was the product of the unlawful arrest and unlawful search of petitioner's vehicle was introduced at trial and used to convict petitioner;
4. Petitioner's statements should have been suppressed because he was not advised of his constitutional rights prior to questioning and the statements were therefore obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and,
5. The trial court violated petitioner's federal constitutional rights when it instructed the jury pursuant to CALJIC No. 17.41.1.
(First Fed. Pet. at 5-6). Respondent contended that grounds one and four were unexhausted, and the court concurred. In his second federal petition, petitioner raises the following grounds:
1. The trial court erred in refusing to suppress evidence seized from petitioner's vehicle because the evidence was obtained as the result of an unlawful search and seizure in violation of petitioner's Fourth Amendment rights;
2. Petitioner was arrested without probable cause; and,
3. The trial court violated petitioner's federal constitutional rights when it instructed the jury pursuant to CALJIC No. 17.41.1.
The facts set forth in the California Court of Appeal's opinion are reasonably supported by the...
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