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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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9 JOHN WEECE, Case No. 1:23-cv-00124-JLT-EPG-HC

10 Petitioner, FINDINGS AND RECOMMENDATION TO

DENY RESPONDENT’S MOTION TO

11 v. DISMISS

12 DAVID HOLBROOK,1 (ECF No. 14)

13 Respondent. ORDER DIRECTING PETITIONER TO

FILE SWORN DECLARATION THAT

14 CONTENTS OF PETITION ARE TRUE

AND CORRECT

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ORDER DIRECTING CLERK OF COURT

16 TO SUBSTITUTE DAVID HOLBROOK AS

RESPONDENT

17 18 Petitioner John Weece is a state prisoner proceeding pro se with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the undersigned 20 recommends denying Respondent’s motion to dismiss. 21 I. 22 BACKGROUND 23 On January 27, 2023, Petitioner filed a federal petition for writ of habeas corpus pursuant 24 to 28 U.S.C. § 2254, challenging his 2016 Tulare County Superior Court convictions for multiple 25 counts of sexual abuse of minors. (ECF No. 1 at 1.)2 The petition raises the following claims for 26 1 David Holbrook is the Warden of the Chuckawalla Valley State Prison, where Petitioner is currently housed. (ECF 27 No. 15.) Accordingly, David Holbrook is substituted as Respondent in this matter. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996). 1 relief: (1) ineffective assistance of counsel; (2) prosecutorial misconduct; and (3) false witness 2 testimony. (ECF No. 1 at 5–8.) Respondent filed a motion to dismiss, arguing that dismissal is 3 warranted because the petition is unverified, Ground Three is unexhausted and thus the petition 4 is mixed, and Ground Three does not present a federal question. (ECF No. 14.) To date, no 5 opposition or statement of non-opposition has been filed, and the time for doing so has passed. 6 II. 7 DISCUSSION 8 A. Ground Three 9 Petitioner lists under Ground Three of the petition: “False Witness Testimony, Penal 10 Code 1473.” (ECF No. 1 at 8.) The supporting facts state: 11 On December 12, 2017, Sidney suddenly admitted that she had lied to “one question” that she could not remember during the morning 12 session. (8 R.T. pp. 860–61). During Sidney’s CART Interview and Testimony failed to demonstrate that kind of memory for 13 traumatic events that she alleged. “I don’t remember the story that I told you[.]” 14 15 (ECF No. 1 at 8.) In the motion to dismiss, Respondent argues that “Petitioner’s ‘false evidence’ 16 claim under California Penal Code section 1473 presents no federal question.” (ECF No. 14 at 17 4.) Respondent also argues that although the testimony that Petitioner now claims is false 18 evidence was the subject of Petitioner’s insufficient evidence claim and ineffective assistance of 19 counsel claim for counsel’s failure to impeach the victim about said testimony, the claim is 20 unexhausted because “at no point has Petitioner challenged this evidence under California Penal 21 Code section 1473.” (Id. at 3.) 22 1. Cognizability in Federal Habeas Corpus 23 In Ground Three, Petitioner asserts a false witness testimony claim with citation to “Penal 24 Code 1473.” (ECF No. 1 at 8.) California Penal Code section 1473 provides in pertinent part: “A 25 writ of habeas corpus may be prosecuted for, but not limited to . . . False evidence that is 26 substantially material or probative on the issue of guilt or punishment was introduced against a 27 person at a hearing or trial relating to the person’s incarceration.” Cal. Penal Code § 1473(b)(1). 1 section 1473, such a claim is an issue of state law and not cognizable in federal habeas corpus. 2 See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam) (“We have stated many times 3 that federal habeas corpus relief does not lie for errors of state law.”); Wilson v. Corcoran, 562 4 U.S. 1, 5 (2010) (per curiam) (“[I]t is only noncompliance with federal law that renders a State’s 5 criminal judgment susceptible to collateral attack in the federal courts.”); Langford v. Day, 110 6 F.3d 1380, 1389 (9th Cir. 1996) (citations omitted) (“We accept a state court’s interpretation of 7 state law, and alleged errors in the application of state law are not cognizable in federal habeas 8 corpus.”); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (“[A] petition alleging errors in 9 the state post-conviction review process is not addressable through [federal] habeas corpus 10 proceedings.”). 11 Although the petition does not identify a federal constitutional basis for this false 12 evidence claim, the petition indicates that the claim was not raised on direct appeal but was 13 raised in state habeas petitions filed in Tulare County Superior Court case VHC423534 and 14 California Court of Appeal, Fifth Appellate District case F084335. (ECF No. 1 at 9.) These state 15 habeas petitions asserted ineffective assistance of counsel claims for “trial counsel fail[ure] to 16 impeach prosecution witness Sidney.” (ECF No. 13-5 at 8; ECF No. 13-6 at 5.) The supporting 17 facts state: 18 On December 12, 2017, Sidney suddenly admitted that she had lied to “one question” that she could not remember during the morning 19 session. (8 R.T. pp. 860–61). During Sidney’s CART Interview and Testimony failed to demonstrate that kind of memory for the 20 traumatic events that she alleged. “I don’t remember the story that I told you, cause it was really a long time ago”, describing a story 21 she had told only minutes before. (2 C.T. p. 546). Sidney’s allegations evoled [sic] over time in proximity to Grandma Cheryl, 22 were highly inconsistent and showed no indica of trauma because she could not remember her stories. (A.O.B. p. 132). Psychological 23 research shows that traumatic memories do not fade. 24 (ECF No. 13-5 at 8; ECF No. 13-6 at 5.) The state habeas petitions also list the following 25 supporting “cases, rules, or other authority,” which all involve ineffective assistance of counsel 26 claims: Richards v. Quarterman, 566 F.3d 553 (5th Cir. 2009); Strickland v. Washington, 466 27 U.S. 668 (1984); U.S. ex rel. McCall v. O’Grady, 908 F.2d 170 (7th Cir. 1990); Driscoll v. Delo, 1 “It is an entrenched principle that pro se filings however inartfully pleaded are held to 2 less stringent standards than formal pleadings drafted by lawyers. We are specifically directed to 3 construe pro se pleadings liberally. This duty applies equally to pro se motions and with special 4 force to filings from pro se inmates.” United States v. Qazi, 975 F.3d 989, 992–93 (9th Cir. 5 2020) (internal quotation marks and citations omitted). Given this duty, the Court will liberally 6 construe Ground Three of the petition as asserting an ineffective assistance of counsel claim for 7 trial counsel’s failure to impeach prosecution witness Sidney, as set forth in Petitioner’s state 8 habeas petitions. In light of the Court’s liberal construction, Ground Three of the petition states a 9 cognizable federal habeas claim, and dismissal is not warranted on this ground. 10 2. Exhaustion 11 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 12 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 13 on comity to the state court and gives the state court the initial opportunity to correct the state’s 14 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 15 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 16 providing the highest state court with a full and fair opportunity to consider each claim before 17 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 18 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 19 To provide the highest state court the necessary opportunity, the petitioner must “fairly 20 present” the claim, Duncan, 513 U.S. at 365, with “reference to a specific federal constitutional 21 guarantee, as well as a statement of the facts that entitle the petitioner to relief,” Gray v. 22 Netherland, 518 U.S. 152, 162–63 (1996). Accord Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 23 2008) (“Fair presentation requires that the petitioner ‘describe in the state proceedings both the 24 operative facts and the federal legal theory on which his claim is based so that the state courts 25 have a “fair opportunity” to apply controlling legal principles to the facts bearing upon his 26 constitutional claim.’” (citations omitted)). 27 Respondent argues that Ground Three is unexhausted because neither the direct appeal 1 California Penal Code section 1473 claim.” (ECF No. 14 at 4.) However, as set forth in section 2 II(A)(1), supra, the Court has liberally construed Ground Three as asserting an ineffective 3 assistance of counsel claim for trial counsel’s failure to impeach prosecution witness Sidney. 4 This ineffective assistance of counsel claim was raised in Petitioner’s state habeas petitions filed 5 in the Tulare County Superior Court, the California Court of Appeal, and the California Supreme 6 Court. (LDs3 5, 6, 8.) Accordingly, the Court finds that dismissal is not warranted on this ground. 7 B. Unverified Petition 8 Rule 2 of the Rules Governing Section 2254 Cases states that the habeas petition must 9 “be signed under penalty of perjury by the petitioner.” Rule 2(c)(5), Rules Governing Section 10 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. Petitioner did not sign 11 the petition under penalty of perjury, (ECF No. 1 at 15), but the Court will grant Petitioner an 12 opportunity to correct this oversight by filing a declaration under penalty of perjury that the 13 contents of the petition are true and correct. Accordingly, Respondent’s request that the petition 14 be dismissed pending verification should be denied. See Hendricks v. Vasquez, 908 F.2d 490, 15 491 (9th Cir. 1990) (“The district court may refuse to file, or may dismiss, an unsigned and 16 unverified petition. However, the defect is one that the district court may, if it sees fit, 17 disregard.” (citations omitted)). 18 III. 19 ORDER & RECOMMENDATION 20 Based on the foregoing, the Court HEREBY ORDERS that: 21 1. David Holbrook be SUBSTITUTED as Respondent in this matter; and 22 2. Within THIRTY (30) days from the date of service of this order, Petitioner SHALL 23 FILE a declaration under penalty of perjury that the contents of the petition are true and 24 correct. 25 Petitioner is forewarned that failure to follow this order may result in a recommendation 26 for dismissal of the petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s 27 failure to prosecute or to comply with a court order may result in a dismissal of the action). 1 Further, the undersigned HEREBY RECOMMENDS that Respondent’s motion to 2 | dismiss (ECF No. 14) be DENIED. 3 This Findings and Recommendation is submitted to the assigned United States District 4 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 5 | Rules of Practice for the United States District Court, Eastern District of California. Within 6 | FOURTEEN (14) days after service of the Findings and Recommendation, any party may file 7 | written objections with the court and serve a copy on all parties. Such a document should be 8 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 9 | objections shall be served and filed within fourteen (14) days after service of the objections. The 10 | assigned United States District Court Judge will then review the Magistrate Judge’s ruling 11 | pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 12 | the specified time may waive the right to appeal the District Court’s order. Wilkerson v. 13 | Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 14 | Cir. 1991)). 15 16 IT IS SO ORDERED. 17| Dated: _ July 12, 2023 [sf ey — 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28