Brown v. Montgomery

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 JONAS BROWN, Case No.: 21cv1550-L-WVG

12 Petitioner,

ORDER ADOPTING IN PART AND

13 v. REJECTING IN PART REPORT

AND RECOMMENDATION AND

14 WARREN L. MONTGOMERY, Warden,

GRANTING MOTION TO DISMISS

15 Respondent. [ECF NOS. 4, 8]

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17 Petitioner Jonas Brown, a state prisoner represented by counsel, filed a petition for

18 a writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction for murder,

19 attempted murder, and aggravated assault. (Petition [ECF No. 1.]) The Petition was

20 referred to United States Magistrate Judge William V. Gallo for a report and

21 recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d).

22 The Magistrate Judge issued a report and recommendation ("R&R"),

23 recommending denial of the Petition. Petitioner objected. (Objections [ECF No. 9.])

24 Respondent did not respond to the Objections. For the reasons which follow, the Report

25 and Recommendation is adopted in part and rejected in part, and the motion to dismiss is

26 denied without prejudice.

27 / / / / /

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1 In reviewing a Magistrate Judge's Report and Recommendation, the District Court

2 "shall make a de novo determination of those portions of the report . . . to which

3 objection is made," and "may accept, reject, or modify, in whole or in part, the findings

4 or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Petitioner

5 objected to the report and recommendation’s finding that the petition should be dismissed

6 because it contains an unexhausted claim.

7 I. BACKGROUND

8 The relevant facts as reported by the California Court of Appeal are as follows:

9 Tremayne Jones was shot and killed in the middle of the afternoon on

Encinitas Way, a neighborhood street. About a week later, Brown (who was

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known to police as a Skyline gang member) was pulled over for a traffic

11 violation and arrested on an unrelated charge. He pleaded guilty and began

serving his sentence. Only later was he charged with Jones’s murder.

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13 See People v. Brown, 52 Cal. App. 5th 899 n.* (2020)

14 Ultimately, Brown was tried for three shootings and convicted of gang-related crimes,

15 including murder, attempted murder, and aggravated assault. (Exhibit G at 2, 10–11.)

16 A San Diego County jury convicted Brown in August 2018 of

17 premeditated attempted murder, Cal. Penal Code §§ 187(a), 189, 664, assault with a

18 semiautomatic firearm, Cal. Penal Code § 245(b), and murder, Cal. Penal Code §

19 187(a); the jury made findings that Brown committed these crimes for the benefit of

20 a criminal street gang, Cal. Penal Code § 186.22(b)(1), (5), that he committed the murder

21 and attempted murder while personally discharging a firearm, Cal. PenalCode §

22 12022.53(b)-(d); and that he committed assault while personally using a

23 firearm, Cal. Penal Code § 12022.5(a). (Exhibit A at 22–26; Exhibit C at 715–22.)

24 The jury acquitted Brown of one count of discharging a firearm in a grossly

25 negligent manner. (Exhibit A at 24; Exhibit C at 720.)

26 Brown admitted, after the convictions, that he had previously been convicted in

27 2011 of a crime that was both a strike and a prior-serious felony, Cal. Penal Code §

28 667(a)-(i). (Exhibit A at 25– 26; Exhibit C at 716.) On January 16, 2019, the trial court

1 sentenced Brown to 105 years to life, plus 31 years determinate, in state prison, which

2 included time for a previous drug conviction that he was already serving. (Exhibit C at

3 649–52, 725–29; see Doc. 1 at 5–6, 8–9.)

4 Brown took an appeal in which he raised multiple arguments, some of which

5 the California Court of Appeal agreed with and for which he received the relief of

6 “924 days of actual credits” and where the court struck “unauthorized 10-year gang

7 enhancements to Brown’s murder and attempted murder convictions.” People v.

8 Brown, 52 Cal. App. 5th at 910; (also Exhibit G at 21–24, 27). The California Court

9 of Appeal, however, rejected Brown’s state-law based arguments regarding

10 presentence conduct credits and the failure to instruct on the lesser

11 offense of voluntary manslaughter. (Exhibit G at 5–21; see Exhibit D at 5–6).

12 Brown filed a petition for review in the California Supreme Court that raised

13 these latter questions regarding conduct credits and the instruction, both of which

14 again rested only upon state law. (See Exhibit H at 4, 6.) The California Supreme

15 Court denied review on October 28, 2020. (Exhibit I.) Brown filed his Petition in this

16 Court on September 1, 2021, which was well within the one-year limitations period of 28

17 U.S.C. § 2244(d).

18 Petitioner now presents two claims in his Petition: (1) violation of federal due

19 process for the trial court’s failure to award him any credits for the time he spent in

20 custody prior to being charged with murder; (2) violation of federal due process for the

21 trial court’s failure to give the jury a voluntary manslaughter by imperfect self-defense

22 jury instruction. (Pet. at 12, 18).

23 II. DISCUSSION

24 It is well established that a habeas petitioner must first exhaust state judicial

25 remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987);

26 Rose v. Lundy, 455 U.S. 509, 515-16 (1982); McNeeley v. Arave, 842 F.2d 230, 231 (9th

27 Cir. 1988). To exhaust a claim, a petitioner must “fairly present” his claim in each

28 appropriate state court to give the State the opportunity to pass upon and correct the

1 violations of the prisoner’s federal rights. Baldwin v. Reese, 541 U.S. 27, 29 (2004)

2 (citing Duncan v. Henry, 513 U.S. 364, 365-66 (1995)); see also O’Sullivan v. Boerckel,

3 526 U.S. 838, 845 (1999). A petitioner must describe both the operative facts and the

4 federal legal theory on which the claim is based. See Baldwin, 541 U.S. at 27.

5 To fairly present federal claims to a state court, a petitioner must “alert the state

6 court” that his claims rest on the United States Constitution. Duncan, 513 U.S. at 365-66;

7 Baldwin, 541 U.S. at 29; Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). A

8 petitioner must “make reference to provisions of the federal Constitution or must cite

9 either federal or state case law that engages in a federal constitutional analysis.” Fields v.

10 Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005); see Lyons v. Crawford, 232 F.3d 666,

11 670 (9th Cir. 2000) (holding a petitioner satisfies state exhaustion requirements for

12 habeas corpus relief when a petitioner cites the U.S. Constitution, federal case law, or

13 federal statutes).

14 General appeals to “broad constitutional principles, such as due process, equal

15 protection and the right to a fair trial, are insufficient to establish exhaustion.” Hiivala,

16 195 F.3d at 1106 (citing to Gray v. Netherland, 518 U.S. 152, 162-63 (1996)). For

17 purposes of exhaustion “a citation to a state case analyzing a federal constitutional issue

18 serves the same purpose as a citation to a federal case analyzing such an issue.” Peterson

19 v. Lampert, 319 D.3d 1153, 1158 (9th Cir. 2003).

20 Claims must be separately exhausted if they are based on the same facts but are

21 supported by distinct constitutional theories. See Gray, 518 U.S. at 163-65. However, if

22 both claims are “sufficiently related” or “intertwined” so that raising one clearly implies

23 the other, exhausting one claim will also exhaust the related claim, so as the failure to

24 explicitly raise the related claim was not a “strategic choice.” See Lounsbury v.

25 Thompson, 374 F.3d 785, 787-788 (9th Cir. 2004).

26 A. Credits Claim

27 As noted above, Petitioner did not cite to any federal law in his credits claim when

28 he presented it to the California Court of Appeal and the California Supreme Court. (ECF

1 No. 4-4 at 36-43; 4-8 at 13-23). For this reason, Petitioner’s claim was not properly

2 exhausted. In his Objections to the R&R, Petitioner elects to strike his “Credits Claim.”

3 (Obj. at 3).

4 In Rose, 455 U.S. at 520, the Supreme Court noted that mixed petitions should be

5 dismissed, but specifically provided habeas petitioners with the option of amending their

6 applications to delete unexhausted claims rather than suffering dismissal. Further,

7 “Federal Rule of Civil Procedure 15(a), as applied to habeas corpus actions pursuant to

8 28 U.S.C. § 2242, affords petitioners the opportunity to amend their petition once as a

9 matter of course.” Calderon v. United States Dist. Ct. (Thomas), 144 F.3d 618, 620 (9th

10 Cir. 1998). Thus, “district courts can allow petitioners to strike unexhausted claims from

11 their petition and resubmit an amended petition including only the exhausted claims.” Id.

12 In light of the above, the Court adopts the R&R’s finding that Petitioner’s credits

13 claim is unexhausted and grants the motion to dismiss without prejudice. See Calderon,

14 144 F.3d at 620.

15 A. Manslaughter Claim

16 Petitioner contends that the trial court erred by failing to instruct the jury with the

17 imperfect self-defense voluntary manslaughter instruction, thereby violating his due

18 process rights. (Pet. at 18-20). He claims that the facts were unclear about whether the

19 victim or Brown pulled out a firearm first, therefore the jury should have been instructed

20 as to the offense of imperfect self-defense voluntary manslaughter, which is a lesser-

21 included offense of murder. (Id. at 19-20).

22 Respondent counters that the manslaughter instruction claim was not supported by

23 federal constitutional authority when it was presented to the California Court of Appeal

24 and the California Supreme Court, therefore, it is unexhausted and procedurally

25 defaulted, requiring its dismissal. (MTD at 4-5 [ECF No. 4-10.])

26 In his state court petitions, Petitioner did not cite any federal cases, and did not

27 refer to the Due Process Clause, the Fifth Amendment, or the Sixth Amendment, but

28 instead relied upon People v. Breverman, 19 Cal. 4th 142 (1998) among other state cases.

1 (Apl’t Brief at 28 [ECF No. 4-4.]) The R&R found that Petitioner’s reliance on

2 Breverman satisfied the threshold requirement to fairly present a federal claim because

3 the Breverman court purportedly rested its holding on federal due process, and the Fifth

4 and Sixth Amendments. (R&R at 6 [ECF No 8.]) Because the R&R found one claim

5 exhausted and one unexhausted, it concluded that it is a mixed petition that must be

6 dismissed.

7 A close reading of Breverman does not support the assertion that Petitioner

8 properly raised a federal claim to the state courts for exhaustion purposes. In Breverman,

9 the defendant appealed his murder conviction claiming that the trial court violated his

10 state and federal Constitution rights by failing to sua sponte instruct the jury on the heat

11 of passion theory of voluntary manslaughter. 19 Cal.4th 142, 165 (1998). The California

12 Supreme Court noted that under certain circumstances “the denial of instructions on

13 lesser included offenses in a capital case would violate the federal Constitution,” but

14 explicitly held that “the failure to instruct sua sponte on a lesser included offense in a

15 noncapital case is, at most, an error of California law alone.” Id. at 165. In fact, the

16 Braverman court stated that “the United States Supreme Court has expressly refrained

17 from recognizing a federal constitutional right to instructions on lesser included offenses

18 in noncapital cases.” Id. at 166.

19 Because Breverman held that the failure to instruct on a lesser included offense

20 only implicates state law, Petitioner’s claim presented to the state courts did not concern

21 a federal right. While the R&R states that the claim is exhausted because Breverman

22 “explicitly rested on federal due process, the Fifth Amendment and the Sixth

23 Amendment” it is only in the dissents that those federal authorities are cited as a basis for

24 their arguments. Id. at 189 (Kennard, J). As a result, the claim is unexhausted, the R&R is

25 rejected on this ground, Respondent’s motion to dismiss is granted, and the petition

26 dismissed without prejudice.

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I Hl. CONCLUSION

2 For the foregoing reasons, the Report and Recommendation is adopted in part and

3 || rejected in part, and the motion to dismiss is granted without prejudice.

4 IT IS SO ORDERED.

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6 ||Dated: October 25, 2022

: 1 fee fp

g H . James Lorenz,

9 United States District Judge

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