Phea v. Pfeiffer

• Decision Date: 16 February 2021
• Docket Number: No. 2:20-cv-00283 WBS GGH P,2:20-cv-00283 WBS GGH P
• Parties: MALANJE PHEA, Petitioner, v. CHRISTIAN PFEIFFER, Warden, Respondent.
• Court: U.S. District Court — Eastern District of California

MALANJE PHEA, Petitioner, v. CHRISTIAN PFEIFFER, Warden, Respondent.

No. 2:20-cv-00283 WBS GGH P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

February 16, 2021

ORDER AND FINDINGS AND RECOMMENDATIONS

Introduction and Summary

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

At times, judges and lawyers must think that they have "seen it all" with respect to procedural twists and turns. This case proves that there is always a new path to be fashioned.

Petitioner was convicted of 33 counts of sexual misconduct with minors. The Second Amended Petition (SAP) indicates that petitioner was sentenced to 46 years and 4 months. Petitioner raises claims concerning the admission of what has become known as "propensity" evidence and expert testimony regarding the reactions of abused children. He has also raised ineffective assistance of counsel claims with respect to admission of the above evidence.

//// For the reasons set forth herein, petitioner has not exhausted his ineffective assistance of counsel claims; he has procedurally defaulted the primary evidentiary claims¹, and in any event, the primary claims are presently not cognizable in federal habeas corpus. Finally, even if the ineffective assistance claims are reviewed on its merits, they too must fail.

Factual Background

The issues to be resolved in this habeas action do not require a full recitation of the lengthy and depressing facts. They are set forth in the partially published People v. Phea, 25 Cal. App. 5th 583 (2018). The entire appellate opinion, found at ECF Nos. 36-1; 37-56 is referenced herein and attached as Appendix A. To the extent necessary, the facts necessary for discussion are set forth in the individual discussion sections.

Issues Presented

As set forth in the SAP, the issues are as follows:

1. Review should be granted to determine if Evidence Code Section 1108 violates [petitioner's] due process rights to a fair trial;

2. Review should be granted to determine if Section 1108 as applied here violated the 14th Amendment due process guarantee; and

3. Review should be granted to determine if Child Sexual Abuse Accommodation Syndrome ("CSAAS") evidence violates due process.

The Traverse, ECF No. 50, contains a hodge-podge of varying contentions and exhibits, only a couple of which are germane to the issues raised. The issues set forth in the SAP will not be expanded even if the undersigned could fathom from the Traverse what those issues might be.

Procedural Background

After conviction and judgment, petitioner, represented by counsel, appealed. With respect to the primary issues, the court found that petitioner had forfeited his claim that Cal. Evid. Code Section 1108 (propensity evidence) was unconstitutional on its face and as applied. ECF No. 36-1 at 26-27. The court also held forfeited any contention that CSAAS evidence violated due process.Id. at 56. The court went on to deny the merits of petitioner's ineffective assistance of counsel claims on the above issues finding that both state and federal law dictated that an objection would have been unmeritorious. The appellate court made other findings not germane to the issues here.

The petition for review made it to the California Supreme Court, ECF No. 37-57 abandoned the ineffective assistance of counsel claims and ignored the appellate court holding that petitioner had forfeited the issues raised herein. Evidently, the petition was meant to catch the eye of the California Supreme Court on the merits of the forfeited issues without arguing the "baggage" of forfeiture and ineffective assistance of counsel. The petition for review was denied. ECF No. 37-58.

Thereafter, petitioner made a number of successive state habeas corpus petitions, none of which address the issues here. See ECF Nos. 60 through 67. Petitions were filed in the California Court of Appeal, but again, these are irrelevant to the issues here.

Discussion

A. Exhaustion

In order to exhaust state proceedings in order to qualify for federal habeas, one must take a habeas claim to the highest state court. Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995)); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). "Unexhausted claims may be procedurally defaulted. See, e.g., Reese v. Baldwin, 282 F.3d 1184, 1190 (9th Cir.2002). A claim is procedurally defaulted 'if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.' Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)." Beaty, supra, at 987.

As set forth above, petitioner explicitly abandoned his ineffective assistance of trial counsel claims when presenting the petition for [direct] review before the California Supreme Court. In order for these claims to now be exhausted, petitioner would have to file a state habeas petition with the California Supreme Court. Although in California there is no rigid, set time limit for bringing a habeas claim before the state supreme court, habeas petitioners must bring theirhabeas claims without substantial delay. Martin v. Walker, 562 U.S. 307, 312 (2011). Undoubtedly, given this set of circumstances, petitioner would be barred from proceeding on this claim in the California Supreme Court. Therefore, it is possible to assert that the ineffective assistance of counsel claims are procedurally defaulted. See, e.g., Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003).²

However, respondent has not moved to default the ineffective assistance of trial counsel claims; respondent simply observes the unexhausted status. Petitioner has not asked to stay this case in order to exhaust such a claim. Nevertheless, even if requested, the undersigned would recommend denial. One cannot assert diligence for the bringing of a claim when it was knowingly abandoned during state proceedings. And, in order to have a timely claim, a Rhines³ stay would have to be authorized—a request which requires diligence in the bringing of a claim. Moreover, the result of exhaustion at this time would undoubtedly be a finding that the claim was not timely for state review purposes. Finally, for the reasons set forth, infra, any ineffective assistance of trial counsel claim would be denied on its merits.

////

//// The undersigned finds that the ineffective assistance of trial counsel claim is unexhausted. Nevertheless, the undersigned will recommend a denial of the claim on its merits, infra. See 28 U.S.C. § 2254(b)(2).

B. Procedural Default of the Primary Claims

As set forth in the Procedural Background Section, the Court of Appeal found that petitioner had forfeited his claim to Section 1108 constitutionality (both facially and as applied) by failing to object. The same is true for the CSAAS expert evidence. Respondent does argue that the prejudicial evidence claims (both the Cal. Evid. Code 1108 (propensity evidence) and the expert CSAAS evidence) are procedurally defaulted. Respondent is correct.

"A federal habeas court will not review a claim rejected by a state court 'if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.' " Kindler, 558 U.S., at 55, 130 S.Ct., at 615 (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). The state-law ground may be a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits. See Sykes, 433 U.S., at 81-82, 90, 97 S.Ct. 2497.

Ordinarily, a state prisoner seeking federal habeas relief must first "exhaus[t] the remedies available in the courts of the State," 28 U.S.C. § 2254(b)(1)(A), thereby affording those courts "the first opportunity to address and correct alleged violations of [the] prisoner's federal rights," Coleman, 501 U.S., at 731, 111 S.Ct. 2546. The adequate and independent state ground doctrine furthers that objective, for without it, "habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court." Id., at 732, 111 S.Ct. 2546. Accordingly, absent showings of "cause" and "prejudice," see Sykes, 433 U.S., at 84-85, 97 S.Ct. 2497, federal habeas relief will be unavailable when (1) "a state court [has] declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement," and (2) "the state judgment rests on independent and adequate state procedural grounds." Coleman, 501 U.S., at 729-730, 111 S.Ct. 2546.

***

To qualify as an "adequate" procedural ground, a state rule must be "firmly established and regularly followed". Kindler, 558 U.S., at 60 - 61, 130 S.Ct., at 618 (internal quotation marks omitted). [Fn. 4 omitted]. "[A] discretionary state procedural rule," we held in Kindler, "can serve as an adequate ground to bar federal habeas review." Id., at 60, 130 S.Ct., at 618. A "rule can be 'firmly established' and 'regularly followed,' " Kindler observed, "even if

////

the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others." Id., at 60 - 61, 130 S.Ct., at 618.

Walker, supra, at 315-316.

Failure to object is a time-honored procedural default. See Wainright v. Sykes, 433 U.S. 72, 86-87; Leavitt v. Arave, 682 F.3d 1138 (9th Cir. 2012); Rich v. Calderon, 187 F.3d 1064, 1069-70 (9th Cir. 1999); Flores v. Hickman, 533 F.Supp. 2d 1068, 1082-83 (C.D. Cal. 2008). Petitioner did not seek review of the forfeiture holdings; they are established for federal habeas purposes.⁴

Procedural default may be excused if petitioner shows "cause" for the lack of objection, and "prejudice" the...