Drop v. Allen

Background

Robert Drop filed a federal petition under 28 U.S.C. § 2254 challenging his state convictions. In 2017, a state court convicted him of sex crimes against a child under fourteen and sentenced him to 65 years to life. The California Court of Appeal affirmed the conviction, and the California Supreme Court denied review.

Drop raised three due-process claims. Claim one challenged the admission of testimony about child sexual abuse accommodation syndrome. Claim two challenged a jury instruction stating that this evidence could be used to evaluate the complainant’s credibility. Claim three challenged the admission of images found in the computer’s temporary internet files.

Allen, identified as the acting warden, moved to dismiss claims one and three for failure to exhaust state remedies. Exhaustion requires a state prisoner to give the state courts, including the highest available state court, a fair opportunity to decide each federal claim before seeking federal habeas relief. Drop argued that he had presented claims one and three as federal claims in his state appeal and petition to the California Supreme Court.

Claim One

The court held that Drop did not exhaust his federal claim concerning the admission of the syndrome evidence. In his state appellate opening brief, Drop argued that the evidence deprived him of a fair trial, but the court found that he presented the argument under state law rather than as a federal constitutional violation. Drop cited a state decision that relied on a federal case discussing when an evidentiary error may become a constitutional error, but the court found that this citation alone did not fairly present a federal claim.

The court also rejected Drop’s argument that claim one was sufficiently connected to claim two to count as exhausted through that other claim. Claim one concerned whether the syndrome evidence was admissible; claim two concerned whether the jury instruction about that evidence was unfair. The court found that neither claim clearly implied the other and noted that they had been presented separately in the state proceedings.

Claim Three

The court also held that Drop did not exhaust claim three. Drop cited a federal appellate decision concerning the constitutional sufficiency of evidence supporting a conviction. But the court found that Drop’s state-court argument challenged the admissibility of the computer images as propensity evidence under state law, not whether the evidence was sufficient to support his conviction under the federal constitutional standard discussed in the cited decision.

Disposition

The court GRANTED Allen’s motion to dismiss. Claims one and three were DISMISSED. The order did not state that the claims were dismissed with or without prejudice. By October 27, 2023, Drop was required to decide whether to proceed solely with claim two or file a motion to stay the federal case so he could return to state court and attempt to exhaust claims one and three.