Delmonico v. Bonta

Background

Michael John Delmonico filed this self-represented federal petition asking the court to review his 2018 misdemeanor conviction from Palo Alto Superior Court. His amended petition asserted a Miranda claim and eight ineffective-assistance-of-counsel claims. The court dismissed ineffective-assistance subclaims 2 through 8 as unexhausted, meaning Delmonico had not properly presented them to the state courts before seeking federal review.

The court gave Delmonico choices for handling the exhausted and unexhausted claims. It denied his request for a stay under the procedure associated with Rhines because he had not shown the required good cause. Delmonico later filed a second amended petition containing an ineffective-assistance claim, a Miranda claim, and a cumulative-error claim, and he sought a different type of stay associated with King and Kelly. The court denied that request because the cumulative-error claim was unexhausted, while allowing him to renew the request with a third amended petition containing only exhausted claims.

Request for Reconsideration

Delmonico asked for permission to file a motion asking the court to reconsider its denial of the King/Kelly stay. He argued that he had exhausted the cumulative-error claim because it appeared in his appellate opening brief and was mentioned in his petition to transfer.

Under the Northern District of California’s local rule, a party must first obtain permission before filing a reconsideration motion before judgment. The court denied permission. It explained that the petition to transfer mentioned cumulative error only when recounting the procedural history, but listed only two issues for transfer: the ineffective-assistance claim involving Nicolas Pittet and the Miranda issue. The court therefore found no failure to consider a material fact and concluded that the cumulative-error claim had not been presented to the state appellate court in the petition to transfer.

Extension and Available Choices

The court granted Delmonico an extension of time through April 8, 2022, to notify the court how he would proceed. The court clarified that the choices must be based on the second amended petition, which was the operative petition. He could dismiss the unexhausted cumulative-error claim and continue with the ineffective-assistance and Miranda claims; dismiss this action, return to state court to exhaust the cumulative-error claim, and later file a new federal petition; or file a third amended petition containing only exhausted claims and seek a King/Kelly stay while exhausting any remaining claims in state court.

The order also noted that any later attempt to add newly exhausted claims would have to satisfy federal rules concerning the relationship between the new claims and the existing claims and the federal deadline for habeas petitions. Judge Haywood S. Gilliam, Jr. denied the request for leave to file a motion for reconsideration and granted the extension of time.