Cleveland v. Macomber

Background

Darren Cleveland filed a federal petition challenging his confinement. Claim 2 alleged that the police used a tainted photo-identification procedure to make it appear that the victim identified Cleveland as the perpetrator, although Cleveland contended that the victim did not identify his photograph. Cleveland also alleged that his trial lawyer provided ineffective assistance by failing to object to the photo-identification evidence or seek its suppression.

According to the petition, police showed the victim six numbered photographs in the order 5, 2, 3, 4, 1, and 6. The interview transcript stated that the victim identified photograph number 3 as resembling the person who hit him with a bat and shot at him. Cleveland contended that police later placed his photograph in the third position and relabeled the photographs so that his photograph became photograph C, creating the appearance that the victim had identified him.

Exhaustion ruling

Before a state prisoner may obtain federal review of a challenge to confinement, the prisoner generally must present each claim, including its operative facts, to the highest available state court. Cleveland argued that he had exhausted Claim 2 because he had previously challenged the constitutionality of the photo lineup in state court and the federal claim relied on evidence already in the record.

The court disagreed. Cleveland had argued in state court that the lineup was unduly suggestive because his photograph was the only one with certain distinctive features, and he had challenged the victim’s certainty and opportunity to observe the perpetrator. But he had not presented the allegations that the police changed the photograph numbering or order, manipulated the procedure to make it appear that the victim identified his photograph, or that trial counsel should have challenged the lineup for those specific reasons. The court therefore concluded that Claim 2 was not fairly presented to the state supreme court and was unexhausted.

Order

The court directed Cleveland to file a written response by November 16, 2020, selecting one of three options: (1) dismiss the petition, exhaust his claims in state court, and later return to federal court with a fully exhausted petition; (2) dismiss the unexhausted Claim 2 and proceed with adjudication of his other habeas claims; or (3) request a stay while he exhausts Claim 2 in state court.

The court warned that dismissing the entire petition could create a one-year filing-limit problem, while dismissing Claim 2 could create restrictions on a later petition concerning the same conviction. To obtain a stay, Cleveland would need to show good cause for the lack of exhaustion and that the claim was potentially meritorious. If he did not file an appropriate response by the deadline, the court stated that Claim 2 would be dismissed and the remaining claims would proceed. Judge William H. Orrick issued this order; the order did not decide the merits of Claim 2.