Phelps v. Peery

Background

Brewster Denyvous Phelps, a California state prisoner proceeding without an attorney, filed a federal petition challenging his state conviction. In 2018, he was convicted in the Santa Clara County Superior Court of attempted murder, assault with a firearm, and assault by means likely to produce great bodily injury. He received a sentence of 25 years to life, consecutive to 10 years.

His amended federal petition raised four claims:

The California Court of Appeal denied claims one and two on the merits. It did not consider claims three and four on the merits because Phelps had not shown good cause for raising them for the first time in his reply brief. Phelps later presented claims three and four to the California Supreme Court, which denied review without explanation. His first California Supreme Court habeas petition raised only claim two and was denied. His second raised claims three and four and was denied with a citation to In re Clark, which bars successive habeas claims. The federal court had previously dismissed an additional claim for failure to state a cognizable claim and stayed the case so Phelps could pursue state remedies for claims three and four.

The Motion to Dismiss

The respondent moved to dismiss claim one as unexhausted and claims three and four as procedurally defaulted. Exhaustion requires a state prisoner to give the highest available state court a fair opportunity to decide each federal claim before seeking federal habeas relief.

The court held that claim one was unexhausted because Phelps had presented it to the California Court of Appeal but had never presented it to the California Supreme Court. Phelps agreed that claim one was unexhausted. The court therefore dismissed claim one without prejudice.

The court separately considered procedural default. Procedural default generally prevents a federal court from reviewing a federal claim when a state court rejected it based on an independent and adequate state procedural rule. The court found that the California Supreme Court’s citation to In re Clark invoked an independent and adequate rule against successive claims. The court found both repetition and piecemeal presentation: Phelps had previously raised claims three and four during direct review and had not included them in his first California Supreme Court habeas petition, even though he knew of them then.

The court also considered exceptions to procedural default. Phelps did not argue cause and prejudice, and the court found none apparent from the record. The court rejected his general reference to the evidence in the record and his reference to prosecutorial vouching as insufficient to show a fundamental miscarriage of justice or actual innocence. The court therefore concluded that claims three and four were procedurally barred from federal review without reaching their underlying merits.

Disposition

The court granted the respondent’s motion to dismiss claim one as unexhausted and claims three and four as procedurally defaulted. Claim one was dismissed without prejudice. Claims three and four were dismissed as procedurally barred. The court did not dismiss claim two; instead, it ordered the respondent to file an answer addressing why habeas relief should not be granted on that claim and to provide relevant portions of the state trial record. Phelps was permitted to respond by filing a reply, called a traverse, by the deadline stated in the order.