Delmonico v. Bonta
- Haywood Gilliam
- 4:21-cv-02009
- U.S. District Court · Northern District of California
- 7
In Delmonico v. Bonta, Judge Gilliam found three claims potentially viable, denied a stay without prejudice, and ordered Michael John Delmonico to choose how to proceed.
Michael John Delmonico must choose how to proceed within 28 days, and Attorney General Rob Bonta was substituted as the respondent identified as Delmonico’s current custodian.
What happened
Delmonico v. Bonta concerns Michael John Delmonico’s challenge to his 2018 misdemeanor disorderly-conduct conviction. Delmonico filed the case without a lawyer and sought federal review of his conviction and sentence.
His second amended petition raises claims about ineffective assistance of counsel, questioning while in custody without Miranda warnings, and cumulative error. The court said these claims could potentially support relief, but noted that some claims had not been presented to the state courts.
Judge Gilliam denied Delmonico’s request to pause the case without prejudice because the cumulative-error claim appeared unexhausted. The court gave Delmonico 28 days to choose among dismissing the unexhausted claims, dismissing this case to return to state court, or filing a new petition containing only exhausted claims and renewing the stay request.
The detailed version
- Delmonico v. Bonta · No. 4:21-cv-02009
- Haywood Gilliam
- Feb. 11, 2022
Background
Michael John Delmonico filed this action without a lawyer under 28 U.S.C. § 2254, seeking federal review of his 2018 misdemeanor conviction for disorderly conduct under California Penal Code § 647(a). The conviction was entered in Palo Alto Superior Court. The sentence included 12 days in county jail, three years of probation with sex-offender terms, and mandatory sex-offender registration under California Penal Code § 290.
Delmonico appealed to the appellate division of the superior court, which denied the appeal. The California Court of Appeal later summarily denied his request to transfer the appeal. During the federal case, the court dismissed an earlier petition, reopened the case after receiving an amended petition, and previously found that several ineffective-assistance claims had not been presented to the state courts. The court required Delmonico to decide whether to proceed only with exhausted claims, return to state court to exhaust the other claims, or seek a stay while doing so.
Claims in the Second Amended Petition
The second amended petition asserted three grounds for relief:
- Delmonico alleged that trial counsel was ineffective for calling Nicolas Pittet as a defense witness without first vetting him.
- He alleged that he was questioned while in custody without receiving the warnings required by Miranda v. Arizona, violating his Fifth Amendment right against self-incrimination.
- He alleged cumulative error, meaning that the combined effect of multiple errors deprived him of a fair proceeding.
The court found that these claims appeared cognizable under § 2254 and that they warranted an answer from the respondent at the screening stage. The court did not decide whether Delmonico was entitled to relief on any claim.
Exhaustion and Stay Request
Before seeking federal habeas relief, a petitioner generally must present the relevant claims to the state courts. The court determined that the state petition for transfer presented the claim concerning the unvetted witness and the Miranda claim, but did not present cumulative error. Accordingly, the court concluded that the second amended petition appeared to include an unexhausted claim.
Delmonico requested a King/Kelly stay. That procedure allows a federal court to pause a petition containing exhausted claims while the petitioner returns to state court to exhaust additional claims. The court denied the request because the second amended petition did not appear to contain only exhausted claims. The denial was without prejudice to filing a renewed stay request accompanied by a third amended petition containing only exhausted claims.
Order and Next Steps
Within 28 days from the order’s date, Delmonico was required to notify the court of one of three choices:
- Dismiss ineffective-assistance subclaims 2 through 8 and proceed with the exhausted ineffective-assistance subclaim concerning Pittet and the Miranda claim;
- Dismiss this action and return to state court to exhaust subclaims 2 through 8 before filing a new federal petition; or
- File a third amended petition containing only exhausted claims and a new King/Kelly stay motion while he exhausts subclaims 2 through 8 in state court.
If Delmonico did not make a choice or file the required motion by the deadline, the court stated that it would dismiss ineffective-assistance subclaims 2 through 8 as unexhausted and issue a separate order requiring the respondent to address the remaining ineffective-assistance and Miranda claims.
The court also directed the clerk to substitute Attorney General Rob Bonta for the previously named respondent because the opinion identifies Bonta as Delmonico’s current custodian. Judge Haywood S. Gilliam, Jr. did not issue an order requiring the respondent to show cause at this stage because it was unclear whether the second amended petition would be the operative petition and whether the cumulative-error claim was exhausted.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.