1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT DROP, Case No. 22-cv-04436-WHO

8 Petitioner,

ORDER GRANTING MOTION TO

9 v. DISMISS

10 TRENT ALLEN, Re: Dkt. No. 9 Respondent. 11

12 Petitioner Robert Drop (“Drop”) seeks federal habeas relief from his state convictions. 13 Petition (“Pet.”) [Dkt. No. 1]. Respondent Trent Allen, Acting Warden (“Allen”), moves to 14 dismiss claims one and three on the grounds that Drop did not exhaust state remedies. Motion 15 (“Mot.”) [Dkt. No. 9]. Because Drop did not exhaust those claims, Allen’s motion is GRANTED. 16 Claims one and three are DISMISSED. By October 27, 2023, Drop must decide whether to 17 proceed solely with claim two or file a motion to stay this suit so he can return to state court to 18 attempt to exhaust claims one and three.1 19 BACKGROUND 20 In 2017, Drop was convicted in state court of committing sex crimes against a child under 21 fourteen and received a sentence of 65 years to life. Pet. at 2:21-24. The California Court of 22 Appeal affirmed Drop’s conviction on direct review. Id. at 3:1-2. The California Supreme Court 23 denied review. Id. at 3:3-4. Drop filed this federal habeas petition on August 1, 2022, and the 24 government now moves to dismiss claims one and three. See id. 25 Drop raises three federal due process claims in his 28 U.S.C. § 2254 petition. In claim 26

27 1 Respondent also moves to dismiss part of claim one, on the grounds a portion of the claim is 1 one, Drop contends that the trial court erroneously admitted testimony about child sexual abuse 2 accommodation syndrome (“CSAAS”). Drop argued that the state trial court “denied his federal 3 constitutional right to due process . . . [when it] erroneously admitted testimony about [CSAAS].” 4 Pet. ¶ 15; Memorandum in Support at 18:6-9. In claim two, Drop alleges that the trial court 5 erroneously instructed the jury that child sexual abuse syndrome evidence could be used to 6 evaluate the credibility of the complainant. In claim three, Drop states that the trial court 7 erroneously admitted images found in the temporary internet files of the computer. Drop asserts 8 that the state trial court “denied his federal constitutional right to due process . . . [when it] 9 erroneously admitted images found only in the temporary internet files [of] the computer.” Pet. ¶ 10 23; Memorandum in Support at 19:11-14. 11 Allen moves to dismiss claims one and three for failure to exhaust. Mot. at 2:14-3:26. 12 Drop opposes, arguing that claims one and three were fully exhausted as federal claims in state 13 court. Oppo. at 2–5. 14 LEGAL STANDARD 15 State prisoners who wish to challenge either the fact or length of their confinement in 16 federal habeas proceedings must first exhaust state judicial remedies, either on direct appeal or 17 through collateral proceedings, by providing a fair opportunity for the highest state court available 18 to rule on the merits of every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), 19 (c); see also O’Sullivan v. Boerckel, 526 U.S. 838, 839–40 (1999); Cooper v. Neven, 641 F.3d 20 322, 326 (9th Cir. 2011); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994); Rose v. Lundy, 455 21 U.S. 509, 515–16 (1982). A state’s highest court must be given an opportunity to rule on the 22 claims, even if review is discretionary. See O'Sullivan, 526 U.S. at 845 (petitioner must invoke 23 “one complete round of the State’s established appellate review process.”). 24 To comply with the fair presentation requirement, a claim must be raised at every level of 25 appellate review; raising a claim for the first time on discretionary review to the state’s highest 26 court is insufficient. Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004) (holding that where 27 petitioner only raised federal constitutional claim on appeal to the Washington State Supreme 1 state court remedies are exhausted or there is either “an absence of available state corrective 2 process” or such process has been “rendered ineffective.” See 28 U.S.C. § 2254(b)(1)(A)-(B). 3 It is not enough to merely present a claim to the state’s highest court. See Johnson v. 4 Zenon, 88 F.3d 828, 829–30 (9th Cir. 1996). A petitioner must also apprise the state’s highest 5 court that she is bringing a claim under the United States Constitution. Kelly v. Small, 315 F.3d 6 1063, 1066 (9th Cir. 2003) (overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th 7 Cir. 2007)). A petitioner must explain “both the operative facts and the federal legal theory on 8 which [their] claim is based[,] so that state courts have a ‘fair opportunity’ to apply controlling 9 legal principles to facts bearing upon [their] constitutional claim.” Id. (citations and internal 10 quotation marks omitted); see also Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008). 11 “A claim is not ‘fairly presented’ if the state court ‘must read beyond a petition or a brief 12 . . . to find material’ that alerts it to the presences of a federal claim.” Wooten, 540 F.3d at 1025 13 (quoting Baldwin v. Reese, 541 U.S. 27, 29 (2004)); see also, Gatlin v. Madding, 189 F3d 882, 14 888 (9th Cir. 1999). “Consistent with the recognition that state and federal courts are jointly 15 responsible for interpreting and safeguarding constitutional guarantees . . . [a] citation to either a 16 federal or state case involving the legal standard for a federal constitutional violation is sufficient 17 to establish exhaustion.” Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (affirming that 18 “citation to either a federal or state case involving the legal standard for a federal constitutional 19 violation is sufficient to establish exhaustion”). But “general appeals to broad constitutional 20 principles, such as due process, equal protection, and the right to a fair trial,” do not establish 21 exhaustion. Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citation omitted). The claim 22 “must include reference to a specific federal constitutional guarantee, [and] a statement of facts 23 which entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162–63 (1996). 24 I. CLAIM ONE 25 Drop argues that he exhausted claim one of his 28 U.S.C. § 2254 petition based on the 26 admission of CSAAS evidence in state court because he “raised [it] in [his] state appellate brief,” 27 and subsequently in his “petition for review before the California Supreme Court.” Oppo. at 3. 1 Appellate Opening Brief (“AOB”), for the proposition “that the admission of expert [CSAAS] 2 evidence deprived [him] of a fair trial” as the testimony was used to “bolster” the credibility of the 3 victim’s testimony. Oppo. at 3 (citing Ex. A, Drop’s AOB at 41).2 4 Drop did not, however, raise any federal constitutional theory in support of the fair trial 5 claim in his AOB. The question is whether Drop’s citation to Julian alone was sufficient to 6 exhaust this claim. Citation to a state court authority can exhaust a claim for federal habeas 7 purposes but only if that case squarely discusses the “legal standard for a federal constitutional 8 violation,” Castillo, 399 F.3d at 999, and is not merely in support of a “general appeal[] to broad 9 constitutional principles, such as due process, equal protection, and the right to a fair trial.” 10 Hiivala, 195 F.3d at 1106. As Drop points out, the Julian decision cites to Snowden v. Singletary, 11 135 F.3d 732, 739 (11th Cir. 1998), a federal case where the court held that “a state evidentiary 12 error [rose] to a federal constitutional error.” Id. However, the mere citation to Julian which then 13 relies on Singletary for the proposition that some evidentiary errors can rise to the level of a 14 federal constitutional error is insufficient to show a federal law-based constitutional error was 15 raised to the California Court of Appeal. At the Court of Appeal, Drop argued that admission of 16 the CSAAS testimony violated his rights to a fair trial under state law. It was not framed as a 17 federal constitutional violation under federal law. See O’Sullivan, 526 U.S. at 839–40; Cooper, 18 641 F.3d at 326.3 19 Drop separately argues that he referenced a specific constitutional guarantee and facts in 20 support at page 49 in his AOB. Oppo. at 3-4. There, he argued that admission of the CSAAS 21 evidence “impermissibly shifted” the burden of proof in favor of the prosecution in violation of 22

23 2 The Snowden court concluded that “a state evidentiary error [can] rise to a federal constitutional error . . . [when] expert testimony [is used] to boost the credibility of the main witness against [the 24 defendant].” 135 F.3d at 739.

25 3 One exception to this rule is if the California Court of Appeal decided the outcome of a claim under federal law. Then, even if not relied on by a petitioner, the Court of Appeal’s invocation of 26 federal authority could exhaust the claim for federal purposes. See Park v. California, 202 F.3d 1146, 1151 (9th Cir. 2000). Here, the California Court of Appeal did not identify or apply federal 27 law in rejecting error based on admission of CSAAS evidence in its opinion. See People v. Drop, 1 due process clauses of both the federal and state constitutions. AOB at 49 (“Such shifting of a 2 burden of proof is a violation of the due process clauses of our federal and state constitutions. (US 3 Const. Amend V and XIV)”). Page 49 of his AOB discusses claim two, his challenge to the jury 4 instruction regarding CSAAS (CalCrim 1193), arguing that the instruction is fundamentally unfair. 5 See AOB 49-50.4 Despite presenting the two claims separately in his AOB and again here in his 6 federal Petition, Drop argues that claim one in his Petition (the erroneous admission of evidence) 7 is essentially “intertwined” with claim two (the erroneous jury instruction). Oppo. at 3–4. If Drop 8 were correct, and claim one and claim two were necessarily intertwined, he could proceed here 9 with claim one because claim two was exhausted.5 10 I find that the claims are not sufficiently intertwined: the challenge to admissibility under 11 claim one does not “clearly imply” an error in the instruction in claim two or vice versa. See 12 Wooten, 540 F.3d at 1025. As Allen points out, claim one regards the “admissibility” of CSAAS 13 evidence and claim two regards the fairness of the CSAAS jury instruction. Each claim was 14 presented separately to the California Supreme Court. See Ex. B, Dkt. No. 9-1, California 15 Supreme Court Petition for Review (“Cal. Pet.”). The separation of the question of admissibility 16 of CSAAS evidence under state law in claim one from the use of the CSAAS instruction in claim 17 two at every step of Drop’s challenge to his conviction was a logical and apparently strategic 18 choice of counsel. Compare Cal. Pet. at 9-12 (Drop asked California Supreme Court to review 19 “whether, and under what circumstances, trial courts should permit” CSAAS and relying 20 exclusively on California law) with Cal. Pet. at 13-16 (raising the argument that the jury 21 instruction improperly shifted the burden from the prosecution, in violation of federal due process 22 4 Drop also argues that he identified and relied on a federal theory in his AOB when he argues 23 “the cumulative effect of errors [made by the trial court] deprived the [him] of a fair trial and due process.” Oppo. at 3, citing AOB at 60. However, no federal constitutional provision or federal 24 case was identified or relied on in the cumulative error section of Drop’s AOB. See AOB at 60- 61. 25

5 The Ninth Circuit has explained “a petitioner has ‘fairly presented’ a claim not named in a 26 petition if it is ‘sufficiently related’ to an exhausted claim. Claims are ‘sufficiently related’ or ‘intertwined’ for exhaustion purposes when, by raising one claim, the petition clearly implies 27 another error. This exception does not apply when language in a petition for review indicates a 1 rights). Because of that strategic choice, the claims are not necessarily intertwined. 2 For those reasons, Allen’s motion to dismiss claim one for failure to exhaust is 3 GRANTED. 4 II. CLAIM THREE 5 Drop argues that he exhausted claim three—that the trial court impermissibly admitted 6 images found in the temporary internet files of the computer—in state court by identifying it as a 7 due process violation in both his California Court of Appeal brief and in his California Supreme 8 Court petition. Oppo. at 4–5 (quoting AOB at 53 & Cal.Pet. at 19). In both his AOB and his 9 petition to the California Supreme Court, Drop cited to and relied upon United States v. Flyer, 633 10 F.3d 911, 917 (9th Cir. 2011). See AOB at 53 & Cal.Pet. at 19. The only way this claim is 11 exhausted is if Flyer squarely discusses the “legal standard for a federal constitutional violation,” 12 Castillo, 399 F.3d at 999, and is not merely in support of a “general appeal[] to broad 13 constitutional principles, such as due process, equal protection, and the right to a fair trial.” 14 Hiivala, 195 F.3d at 1106. 15 Allen argues that Drop’s citation to Flyer is insufficient to identify federal constitutional 16 grounds for his claims based on the admissibility of computer images. In Flyer, the court 17 considered “the constitutional sufficiency of evidence to support a criminal conviction” under the 18 two-step test announced in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Flyer, 633 F.3d at 917. 19 Applying that test and considering the evidence at trial, the Ninth Circuit vacated a conviction for 20 “knowing possession” of child pornography on certain dates where there was “no evidence that 21 Flyer knew of the presence of the files on the unallocated space of his Gateway computer's hard 22 drive. The government also concedes it presented no evidence that Flyer had the forensic software 23 required to see or access the files . . . there is no evidence here that Flyer had accessed, enlarged, 24 or manipulated any of the charged images, and he made no admission that he had viewed the 25 charged images on or near the time alleged in the indictment.” Id. at 919. 26 The challenge Drop raised in his petition for review by the California Supreme Court, 27 however, was not about the sufficiency of evidence supporting his conviction but about 1 granted to determine “whether images found only in temporary internet files can be admitted 2 || against a defendant when there is no proof he must have viewed or saved the images”). Drop 3 argued that the images should not have been admitted as uncharged “propensity” evidence given 4 || that insufficient evidence existed that he “possessed” those images under state law. That is the 5 same claim he raises in his federal habeas Petition; challenging the admissibility of the propensity 6 || evidence. Pet. §/] 22-25. But Drop’s citation to Flyer — which simply applied existing federal law 7 governing sufficiency of the evidence for the specific federal offense of possession of child 8 || pornography — does not exhaust his state law challenge to admissibility of the propensity evidence 9 || relevant to his state law charge.° 10 The motion to dismiss claim three for failure to exhaust is GRANTED. 11 CONCLUSION 12 Allen’s motion to dismiss is GRANTED. Claims one and three are DISMISSED. By

13 October 27, 2023, Drop must decide whether to proceed solely with claim two, or file a motion to

v 14 stay this suit so he can return to state court to attempt to exhaust claims one and three.

IT IS SO ORDERED.

16 || Dated: September 26, 2023

it .

4 18 illiam H. Orrick 19 United States District Judge 20 21 22 23 24 25 26 || « Drop does not raise a sufficiency challenge — the central question in Flyer — presumably because 97 || the jury considered significant evidence supporting Drop’s conviction for committing sex crimes against a child under fourteen including expert testimony, and the testimony of the victim and 28 other witnesses, including the victim’s mother. See People v. Drop, Case No. H044970, 2021 WL 958567, at *1 (Cal. Ct. App. Mar. 12, 2021), review denied (May 26, 2021).