Phelps v. Peery

Background

Brewster Denyveous Phelps, a California state prisoner proceeding without a lawyer, filed a petition under 28 U.S.C. § 2254 challenging his conviction. The opinion states that a Santa Clara County Superior Court jury found him guilty in 2018 of attempted murder, assault with a firearm, and assault likely to produce great bodily injury, with firearm-use and great-bodily-injury enhancements. He received a prison sentence of 10 years plus 25 years to life. The California Court of Appeal affirmed the judgment, and the California Supreme Court denied review.

Phelps asserted five claims: (1) the use of surveillance and cell-phone video violated due process and his right to effective assistance of counsel; (2) counsel was ineffective for not calling an eyewitness-identification expert; (3) the prosecutor committed misconduct; (4) the prosecutor misrepresented facts in evidence during closing argument; and (5) the prosecutor vouched for a witness and presented testimony that vouched for a witness.

Claim screening

The court concluded that the first claim, read broadly, stated potential due-process and effective-assistance claims. It also concluded that the second claim stated a potential effective-assistance claim. The court treated the fourth and fifth claims as specific prosecutorial-misconduct claims that stated proper due-process claims.

The court dismissed the third claim. It explained that the claim only generally alleged prosecutorial misconduct and did not identify any particular misconduct. The opinion states that the specific misconduct allegations appeared in the fourth and fifth claims, so a separate general misconduct claim was unnecessary. The court did not state that the third claim was dismissed with or without prejudice.

Stay request

Phelps requested a stay—an order pausing the federal case—to allow exhaustion of his third, fourth, and fifth claims in state court. The court denied the request as to the third claim because it was not a legally recognized basis for federal habeas relief. Phelps conceded that the fourth and fifth claims had not been exhausted, and the court found that he had not shown good cause for failing to exhaust them or that he had been diligent.

Because Phelps was not represented by counsel, the court allowed him to file a motion for a stay addressing the required showing, including good cause and the absence of intentionally delaying litigation. The order required that motion by May 26, 2022, with an opposition due June 24 and a reply due July 8. If Phelps did not file a motion, or if the motion was insufficient, the respondent would be ordered to explain why the petition should not proceed based on the first and second claims.

Filing fee and other orders

The court granted Phelps an extension because prison officials had delayed providing the trust-account statement and certificate of funds needed for his application to proceed without paying the filing fee. He had until June 27, 2022, either to pay the $5 filing fee or submit a completed application. The order stated that failure to do so could result in dismissal of the case.

The court also vacated the earlier “Order to Show Cause; Granting Extension of Time,” stating that it had been filed in this case in error. The order reminded Phelps that he was responsible for prosecuting the case and for notifying the court of any address change.

Disposition

The court dismissed the third claim, denied the stay request as to that claim, set briefing for a possible stay motion concerning the fourth and fifth claims, and granted Phelps additional time to pay the filing fee or submit a fee-waiver application. The court did not decide the merits of the remaining habeas claims.