Blake v. Ndoh

Background

Gordon Blake, represented by counsel, was convicted in California state court of various lewd and forcible lewd acts involving four minors. He received a sentence of 194 years to life in prison. The California Court of Appeal affirmed his convictions, and the California Supreme Court denied his petition for review.

Blake filed a federal petition for a writ of habeas corpus asserting three claims. The motion addressed Claim I, which challenged seven counts involving three of the minors. Blake argued that the convictions violated federal constitutional due process and/or the Ex Post Facto Clause because the charged conduct qualified as “substantial sexual conduct” only under statutory amendments enacted after the statute of limitations had expired.

Exhaustion issue

Under federal law, a state prisoner generally must exhaust available state-court remedies before a federal court may grant habeas relief. Exhaustion requires the prisoner to fairly present the federal claim to the state courts, including the state’s highest court when that court is part of the ordinary appellate process.

Blake did not raise Claim I in the opening brief on his direct appeal. He raised it in his reply brief, but the California Court of Appeal declined to consider it because it was presented too late and found that Blake had not shown a reason to depart from that rule. Blake also asked to file a supplemental brief, but the request was denied. He did not include the issue in his petition for review to the California Supreme Court.

Blake later filed a state habeas petition in the California Supreme Court, but that petition also did not present the underlying due-process or Ex Post Facto claim. Blake argued that related claims alleging ineffective assistance of counsel sufficiently raised the issue. The court rejected that argument, explaining that an ineffective-assistance claim and the underlying constitutional claim are separate claims and must each be presented specifically.

Ruling

Judge William H. Orrick agreed that Blake had not exhausted Claim I because he never presented that claim to the California Supreme Court. The court therefore granted Ndoh’s motion to dismiss Claim I without prejudice. The petition may proceed on the remaining two claims.

The court stated that Blake could dismiss the petition and return to state court, proceed only on the exhausted claims, or ask to stay the federal case while exhausting Claim I. If Blake wanted another stay, he had to move for one by February 15, 2021. If he did not, the case would proceed on the remaining claims under the schedule set in the order.