Wilkins v. Macomber

Background

Keenan G. Wilkins, also known as Nerrah Brown, filed a federal petition challenging his Alameda County Superior Court conviction under 28 U.S.C. § 2254. He was convicted of seven counts of second-degree robbery, seven counts of false imprisonment by violence, and one count of making criminal threats. The state court sentenced him to 100 years to life in prison.

Wilkins initially filed the federal case without a lawyer and raised 23 claims. After the court appointed counsel, his counsel filed an amended petition. In May 2018, the court granted the respondent’s motion to dismiss because most claims had not been presented to the state courts. The court later granted in part and denied in part Wilkins’s first motion for reconsideration. After new counsel was appointed, Wilkins filed a second amended petition identifying additional state habeas petitions and state-court docket sheets.

Motion for Leave to File a Second Amended Petition

The respondent argued that Wilkins could not file a second amended petition without the court’s permission. The court disagreed and granted Wilkins’s motion for leave to file the second amended petition. The court reasoned that the appointment of new counsel in this case indicated that an amended petition could be filed to correct prior counsel’s errors.

Motion for Reconsideration

The court examined whether particular claims had been exhausted. Exhaustion generally requires a person challenging a state conviction to give the highest available state court a fair opportunity to address each federal claim before seeking federal relief.

The court found Claim 2, which alleged a speedy-trial violation based on Wilkins’s pretrial detention, unexhausted. The state petition relied on for that claim had presented the claim for the first time to the California Supreme Court without first presenting it to the California Court of Appeals.

The court found Claim 8 exhausted. The claim alleged that denying Wilkins medication needed to maintain his competence for trial violated due process under the Fourteenth Amendment. The second amended petition removed separate equal-protection and Eighth Amendment theories that had not been exhausted. The respondent conceded, and the court agreed, that the remaining due-process claim was exhausted and adequately alleged.

The court found Claim 9 unexhausted. That claim alleged a due-process violation based on Wilkins’s exclusion from an in-camera hearing when his appointed counsel was relieved. The state petition relied on by Wilkins did not allege sufficient facts to exhaust that claim.

The court found Claim 22 fully exhausted. That claim involved alleged ineffective assistance of trial counsel and an irreconcilable conflict with trial counsel, under the Sixth and Fourteenth Amendments. The court determined that the relevant state petitions, identified as Petitions #13, #15, and #16, together exhausted the claim. The court did not consider Petition #14 because it was filed in state court after the first motion for reconsideration had been filed.

The court found Claim 23 exhausted. That claim alleged ineffective assistance of appellate counsel. The court considered Petition #15 and agreed with the respondent’s concession that the petition exhausted the claim, but did not consider Petition #14 for the same timing reason stated above.

Remaining Claims and Available Choices

The court stated that Claims 1–2, 4–7, 9–11, 13, 15–17, and 19–20 remained unexhausted, as did portions of Claims 12 and 14. It stated that Claim 3 and a portion of Claim 12 were procedurally barred and therefore dismissed. A procedural bar prevents federal review when a state court rejected a claim based on an independent and adequate state procedural rule, unless an exception applies.

Because the second amended petition contained both exhausted and unexhausted claims, the court described it as a mixed petition and stated that it could not decide the petition’s merits while unexhausted claims remained. Rather than immediately dismissing the unexhausted portions, the court allowed Wilkins to choose among three options by March 31, 2021: proceed with Claims 8, 18, 21–23 and portions of Claims 12 and 14; dismiss the federal action and return to state court before filing a new federal petition; or ask to stay the federal proceedings while exhausting the remaining claims. The court stated that if Wilkins did not choose an option or file a motion by the deadline, it would dismiss the unexhausted claims and adjudicate the remaining claims.

Disposition

The court granted the motion for leave to file a second amended petition. It granted in part and denied in part the motion for reconsideration. It found Claims 2 and 9 unexhausted and Claims 8, 22, and 23 exhausted.