# Brown v. Montgomery

> District Court, S.D. California · August 10, 2022

URL: https://www.frixlaw.com/law-library/cases/10086222

## Case

- **Court:** District Court, S.D. California
- **Decided:** August 10, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10086222

## How later opinions describe it (automated extraction)

- holding a petitioner satisfies state exhaustion requirements for habeas corpus relief 2 when a petitioner cites the U.S. Constitution, federal case law, or federal statutes
- holding a district court must dismiss a federal habeas petition containing 2 both unexhausted and exhausted claims

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 JONAS BROWN, Case No.: 21-CV-1550-L(WVG)

12 Petitioner,
REPORT AND RECOMMENDATION ON
13 v. RESPONDENT’S MOTION TO DISMISS

14 WARREN L.
[Doc. No. 4.]
MONTGOMERY, Warden,
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Respondent.
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18 I. INTRODUCTION
19 On September 1, 2021, Petitioner Jonas Brown (“Petitioner”), a state prisoner
20 represented by counsel, filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to
21 28 U.S.C. § 2254. (Pet. at 5, ECF No. 1.) Petitioner alleges his federal constitutional rights
22 were violated upon two separate bases. First, Petitioner alleges it was unreasonable that he
23 was awarded zero conduct credits for the time he spent in custody before being charged
24 with murder. Second, Petitioner alleges it was unreasonable that a jury instruction for
25 manslaughter was not given to the jury during the underlying trial.
26 On November 5, 2021, Respondent filed a Motion to Dismiss arguing Petitioner did
27 not properly present federal authority to exhaust his claims and thus is procedurally barred
28 from relief. (ECF No. 4.) On January 4, 2022, Petitioner subsequently filed a Response in
1 Opposition to Respondent’s Motion to Dismiss. (ECF No. 7.) The Court has reviewed the
2 Petition, Motion to Dismiss, Opposition and all supporting documents submitted by both
3 parties. For the reasons discussed below, the Court RECOMMENDS the Motion to
4 Dismiss be GRANTED and the Petition be DISMISSED without prejudice.
5 II. PROCEDURAL BACKGROUND
6 In August 2018, a jury found Petitioner guilty of murder (Cal. Penal Code § 187(a));
7 premediated attempted murder (Cal Penal Code §§ 187(a), 189, 664,); and assault with a
8 semiautomatic firearm (Cal. Penal Code § 245(b)). (ECF No. 1 at 5:8-13; 4-1 at 22-26.)
9 The jury also determined Petitioner committed the crimes for the benefit of a criminal street
10 gang (Cal. Penal Code § 186.22, subd. (b)(1), (b)(5)); Petitioner committed murder and
11 attempted murder while personally discharging a firearm (Cal. Penal Code § 12022.53(b)-
12 (d)); and Petitioner committed assault while personally using a firearm (Cal. Penal Code §
13 12022.5(a)). Id. After Petitioner was convicted, he admitted he had previously been
14 convicted of a crime that qualified as a prior-serious felony and strike (Cal. Penal Code §
15 667(a)-(i)). (ECF No. 1 at 5:13-14; 4-1 at 22-26.)
16 On January 16, 2019, the trial court sentenced Petitioner to a term of 105 years to
17 life, plus 31 years determinate, in state prison. (ECF No. 1 at 5-6, 8-9; 4-3 at 649-52.) This
18 sentence included time for a previous conviction he was serving. Id.
19 On August 27, 2019, Petitioner directly appealed to the California Court of Appeal
20 and raised multiple arguments. (ECF No. 4-7.) The California Court of Appeal agreed with
21 some of Petitioner’s arguments including granting relief of “924 days of actual credits” and
22 striking the “unauthorized 10-year gang enhancements to Petitioner’s murder and
23 attempted murder convictions.” (ECF No. 4-7 at 22-26, 29.) However, the California Court
24 of Appeal, rejected the two claims Petitioner now raises. (ECF No. 4-7 at 6-22.)
25 On September 8, 2020, Petitioner filed a Petition for Review with the California
26 Supreme Court seeking review of the same two issues currently raised in Petitioner’s
27 federal habeas petition. (ECF No. 4-8 at 7.)
28 / / /
1 On October 28, 2020, the California Supreme Court summarily denied the habeas
2 petition. (ECF No. 4-9.)
3 On September 1, 2021, Petitioner filed the instant Petition for Writ of Habeas Corpus
4 in this Court. (ECF No. 1.) Respondent filed a Motion to Dismiss on November 5, 2021.
5 (ECF No. 4.) Petitioner filed a Response in Opposition to Respondent’s Motion to Dismiss
6 (“Opposition”) on January 4, 2022. (ECF No. 7.)
7 III. LEGAL STANDARD
8 A motion to dismiss a petition for writ of habeas corpus is viewed as a request to
9 dismiss under Rule 4 of the Rules Governing § 2254 Cases in the United States District
10 Courts (“Rules Governing § 2254”). See O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
11 1990). Rule 4 of the Rules Governing § 2254 states: “If it plainly appears from the petition
12 and any attached exhibits that the petitioner is not entitled to relief in the district court, the
13 judge must dismiss the petition.” Federal courts may not grant habeas relief to a person
14 held in state custody unless the petitioner has exhausted his state court remedies. 28 U.S.C.
15 § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 518 (1982).
16 Habeas petitioners who wish to challenge either their state court conviction or the
17 length of their confinement must first exhaust state judicial remedies. See 28 U.S.C. §
18 2254(b), (c); see also Granberry v. Greer, 481 U.S. 129, 133-34 (1987); Peterson v.
19 Lampert, 319 F.3d 1153, 1155 (9th Cir. 2003). A petitioner must “properly exhaust his
20 state court remedies by fairly presenting his federal claim in the state court and thereby
21 giving those courts an opportunity to act on his claim.” Peterson v. Lampert, 319 F.3d
22 1153, 1155-56 (9th Cir. 2003). A “state prisoner seeking relief with respect to a California
23 conviction is required to ‘fairly present’ his federal claims to the Supreme Court of
24 California.” Pombrio v. Hense, 631 F. Supp. 2d 1247, 1250 (C.D. Cal. 2009). A claim is
25 “not fairly presented on its merits if it is raised ‘in a procedural context in which its merits
26 will not be considered’ absent special circumstances.” Id. at 1251 (quoting Castille v.
27 Peoples, 489 U.S. 346, 351 (1989)). Federal courts cannot consider petitions that contain
28 both exhausted and unexhausted claims, often referred to as “mixed” petitions. See Rose,
1 455 U.S. at 522 (holding a district court must dismiss a federal habeas petition containing
2 both unexhausted and exhausted claims). The filing of a mixed petition renders it subject
3 to dismissal. Rose, 455 U.S. at 519.
4 IV. DISCUSSION
5 Petitioner raises two claims in his Petition. (ECF No. 1 at 12-20.) First, Petitioner
6 alleges it is unreasonable he was awarded zero conduct credits for the time he spent in
7 custody before being charged with murder (“Credits Claim”). Id. at 12. Second, Petitioner
8 alleges it is unreasonable a jury instruction for manslaughter was not given to the jury
9 during his trial (“Manslaughter Claim”). Id. at 19. Additionally, Petitioner raises a claim
10 of ineffective assistance of counsel for the first time in his Opposition. (ECF No. 7 at 6:20-
11 7:9.)
12 A. Exhaustion of Claims Raised By Petitioner
13 It is well established that a habeas petitioner must first exhaust state judicial
14 remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987);
15 Rose v. Lundy, 455 U.S. 509, 515-16 (1982); McNeeley v. Arave, 842 F.2d 230, 231 (9th
16 Cir. 1988). To exhaust a claim, a petitioner must “fairly present” his claim in each
17 appropriate state court to give the State the opportunity to pass upon and correct the
18 violations of the prisoner’s federal rights. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing
19 Duncan v. Henry, 513 U.S. 364, 365-66 (1995)); see also O’Sullivan v. Boerckel, 526 U.S.
20 838, 845 (1999). A petitioner must describe both the operative facts and the federal legal
21 theory on which the claim is based. See Baldwin, 541 U.S. at 27.
22 To fairly present federal claims to a state court, a petitioner must “alert the state
23 court” that his claims rest on the United States Constitution. Duncan, 513 U.S. at 365-66;
24 Baldwin, 541 U.S. at 29; Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). A petitioner
25 must “make reference to provisions of the federal Constitution or must cite either federal
26 or state case law that engages in a federal constitutional analysis.” Fields v. Waddington,
27 401 F.3d 1018, 1021 (9th Cir. 2005); see Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir.
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1 2000) (holding a petitioner satisfies state exhaustion requirements for habeas corpus relief
2 when a petitioner cites the U.S. Constitution, federal case law, or federal statutes).
3 General appeals to “broad constitutional principles, such as due process, equal
4 protection and the right to a fair trial, are insufficient to establish exhaustion.” Hiivala, 195
5 F.3d at 1106 (citing to Gray v. Netherland, 518 U.S. 152, 162-63 (1996)). For purposes of
6 exhaustion “a citation to a state case analyzing a federal constitutional issue serves the
7 same purpose as a citation to a federal case analyzing such an issue.” Peterson v. Lampert,
8 319 D.3d 1153, 1158 (9th Cir. 2003).
9 Claims must be separately exhausted if they are based on the same facts but are
10 supported by distinct constitutional theories. See Gray, 518 U.S. at 163-65. However, if
11 both claims are “sufficiently related” or “intertwined” so that raising one clearly implies
12 the other, exhausting one claim will also exhaust the related claim, so as the failure to
13 explicitly raise the related claim was not a “strategic choice.” See Lounsbury v. Thompson,
14 374 F.3d 785, 787-788 (9th Cir. 2004).
15 Petitioner’s Court of Appeals briefing and petition for review to the California
16 Supreme Court argued the same substantive issues regarding the Credits and Manslaughter
17 Claims. For exhaustion purposes, a petition for review filed in the California Supreme
18 Court cannot simply incorporate by reference arguments made to lower courts. Gatlin v.
19 Madding, 189 F.3d 882, 888-89 (9th Cir. 1999). Thus, Petitioner did not fairly present all
20 the claims raised in his Petition and Opposition to both the California Court of Appeals and
21 California Supreme Court. Therefore, his Petition contained improperly exhausted claims
22 and his federal habeas petition presents as a mixed petition.
23 First, Petitioner did not fairly present the federal nature of his Credits Claim to the
24 California Court of Appeals or California Supreme Court. Petitioner alleges it is
25 unreasonable he was awarded zero conduct credits for the time he spent in custody before
26 being charged with murder. (ECF No. 1 at 12.) However, Petitioner’s Credits Claim appeal
27 to both the California Court of Appeals and to the California Supreme Court did not include
28 any citations to federal case law. (ECF No. 4-4 at 36-43; 4-8 at 13-23.) Petitioner’s appeals
1 of his Credit’s Claim failed to make any references to any claims of Due Process, any
2 federal amendment, or any federal provision. Id. Finally, Petitioner’s state law citations did
3 not reference any federal language for this claim, making the citations insufficiently related
4 and not intertwined to the constitutional authority. Id. Instead Petitioner’s Credit Claim
5 appeals to the California Court of Appeals and California Supreme Court focused on
6 California’s application of concurrent sentences. Id. Thus Petitioner’s Credits Claim was
7 improperly exhausted.
8 Second, Petitioner did fairly present his Manslaughter Claim to both state courts.
9 Petitioner’s Manslaughter claim alleges it was unreasonable that a jury instruction of
10 manslaughter was not given to the jury during his trial. (ECF. No. 1 at 19.) Although
11 Petitioner’s Manslaughter Claim at the state court levels did not include any citations to
12 federal cases and did not refer to the Due Process Clause, the Fifth Amendment, or the
13 Sixth Amendment, both state court appeals did rely upon state law cases which analyzed
14 federal constitutional claims. (ECF No. 4-4 at 29-30.) In particular, Petitioner relied upon
15 the cases of People v. Breverman, 19 Cal. 4th 142 (1998), People v. Barton, 12 Cal. 4th
16 186 (1995), and People v. Rogers, 39 Cal. 4th 826 (2006). Id. Petitioner’s reliance on the
17 Breverman Court’s holding to support the majority of Petitioner’s arguments specifically
18 helps to support the federal nature of his Manslaughter Claim. Id. The Breverman Court’s
19 holding explicitly rested on federal due process, the Fifth Amendment, and the Sixth
20 Amendment. Breverman, 19 Cal. 4th at 142. Further, the Breverman Court made 63
21 references to constitutional rights throughout its analysis. Id. Petitioner’s reliance on
22 Breverman fulfilled his threshold requirement to fairly present the federal nature of his
23 manslaughter claims. Thus, Petitioner’s Manslaughter Claim was fairly presented to both
24 state courts and was properly exhausted.
25 Finally, the first time Petitioner raises any claim for ineffective assistance of counsel
26 is during his Opposition papers. (ECF No. 7 at 6:20-7:9.) Petitioner specifically alleges
27 “Brown has a state habeas corpus remedy to challenge his appellate counsel’s ineffective
28 assistance” but fails to make any mention of this claim in his Petition. (ECF No. 7 at 7:1-
1 || 2.) It appears this claim may also not have been properly exhausted as the Petition provides
2 ||no other factual or procedural support for this claim, and this is the first time an ineffective
3 assistance of counsel claim is raised in the record. Petitioner’s ineffective assistance of
4 ||counsel claim was not presented in his moving papers and therefore should not be
5 || considered now, as it is improper for a party to raise a new argument in a reply or opposition
6 || brief. See, e.g., United States v. Bohn, 956 F.2d 208, 209 (9th Cir.1992) (noting that courts
7 || generally decline to consider arguments raised for the first time in a reply brief); United
8 || States v. Boggi, 74 F.3d 470, 478 (3d Cir.1996) (noting that considering arguments raised
9 || for first time in reply brief deprives opposing party of adequate opportunity to respond);
10 || Playboy Enters., Inc. v. Dumas, 960 F.Supp. 710, 720 n. 7 (S.D.N.Y.1997) (“Arguments
11 made for the first time in a reply brief need not be considered by a court.”).
12 As Petitioner did not properly exhaust his Credits Claim, his federal habeas Petition
13 || presents as a mixed petition and must be dismissed.
14 Vv. CONCLUSION
15 This Court RECOMMENDS Respondent’s Motion to Dismiss be GRANTED and
16 Petition be DISMISSED without prejudice.
17 This Report and Recommendation is submitted to the United States District Judge
18 || assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Federal Rule
19 || of Civil Procedure 72(b).
20 IT IS ORDERED that no later than August 24, 2022, any party to this action may
21 || file written objections with the Court and serve a copy on all parties. The document shall
22 || be captioned “Objections to Report and Recommendation.”
23 IT IS FURTHER ORDERED that any reply to the objections shall be filed with
24 || the Court and served on all parties no later than September 7, 2022. The parties are advised
25 failure to file objections within the specified time may waive the right to raise those
26 || objections on appeal of the Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).
27 IT IS SO ORDERED.
28 DATED: August 10, 2022 | / UY Se
Hon. William V. Gallo

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10086222. Public record. Not legal advice.