KENDALL J. NEWMAN, Magistrate Judge.
Petitioner is a state prisoner, proceeding through counsel. On June 30, 2017, respondent renewed the motion to dismiss. As discussed below, the undersigned recommends that respondent's motion to dismiss be partially granted, but that petitioner be granted leave to amend or, in the alternative, to file a request to strike unexhausted claims.
1. A jury convicted petitioner of commercial burglary, misdemeanor battery, assault, criminal threats, and receiving stolen property. (ECF No. 44 at 2.) The jury found petitioner not guilty of battery with serious bodily injury, and found the allegation that he personally inflicted great bodily injury "to be false." (
2. Through counsel on direct appeal, petitioner
3. Through counsel, petitioner filed a petition for review in the California Supreme Court, asserting the following claims:
(Respondent's Lodged Document (hereafter "LD") 5.) Petitioner attached a copy of the reasoned opinion from the California Court of Appeal to his petition for review as an appendix. (
4. The petition for review was denied without comment on January 27, 2016. (LD 6.)
5. On March 16, 2016,
6. On September 14, 2016, respondent filed a motion to dismiss on the grounds that claims 5 and 6, and a large portion of claim 3,
7. On September 26, 2016, petitioner filed a petition for writ of habeas corpus in the California Supreme Court.
8. On November 9, 2016, the California Supreme Court denied the petition without comment.
9. On November 14 and 28, 2016, petitioner filed two additional motions for stay (ECF Nos. 21, 24), as well as a motion to accept claims 3, 5 and 6, and alleged that such claims were denied by the California Supreme Court on November 9, 2016 (ECF No. 22 at 2). Petitioner provided a copy of the habeas petition filed in the California Supreme Court; claims 5 and 6 were listed in the petition, and his entire claim 3 was attached and appeared to be incorporated by reference in the petition. (ECF No. 21 at 5, 11-16; 19-27.)
10. On March 3, 2017, petitioner's motions for stay and respondent's motion to dismiss were denied as moot because petitioner provided a copy of the habeas petition filed in the California Supreme Court; claims 5 and 6 were listed in the petition, and his claim 3 was attached and appeared to be incorporated by reference in the petition. (ECF No. 21 at 5, 11-16; 19-27.)
11. On June 30, 2017, respondent renewed the motion to dismiss. (ECF No. 36.) Petitioner filed an opposition through appointed counsel. (ECF No. 44.) Respondent filed a reply. (ECF No. 48.)
Respondent renewed the motion to dismiss, arguing that despite petitioner's implication that he had presented Claim 3 to the California Supreme Court, "it does not appear that this document was ever filed with the California Supreme Court. (ECF No. 36 at 3.) In addition, respondent contends that because petitioner failed to exhaust his state court remedies prior to the filing of this action, his claims 5 and 6 must be dismissed without prejudice.
In his opposition, petitioner voluntarily withdrew his fifth claim (the trial court erred in failing to stay the punishment for his burglary conviction). (ECF No. 44 at 5.)
Petitioner does not argue that all of claim 3 was included in the habeas petition filed in the California Supreme Court. Rather, petitioner now contends that claim 3 is exhausted because the claim relating to the trial court's evidentiary errors and his ineffective assistance of counsel claim that respondent concedes is exhausted are sufficiently related or intertwined and therefore are exhausted. (ECF No. 44 at 10.) Petitioner relies on
Petitioner also argues that he is not required to file repetitive applications in state court, discusses the difference between exhaustion and procedural default, and contends that he is only required to exhaust remedies that remain available. (ECF No. 44 at 7-8.) Petitioner argues that a federal court can grant relief on an exhausted claim even if the claim was unexhausted at the time the federal petition was filed, and even if the claim was not exhausted until the case was on appeal in the federal circuit court. (ECF No. 44 at 8.) In addition, petitioner notes that the exhaustion statute does not require exhaustion at time of filing. 28 U.S.C. § 2254(b)(1) ("[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ."). (ECF No. 44 at 9.) If the court finds any of petitioner's claims remain unexhausted, petitioner "requests an opportunity to withdraw claims deemed to be unexhausted." (ECF No. 44 at 12.)
In reply, respondent disputes that the majority of petitioner's third claim is exhausted because petitioner seeks federal relief on the claims he set forth in his opening brief filed in the California Court of Appeal. (ECF No. 48 at 2.) Respondent argues that the specific claims petitioner now seeks to pursue were not included in the petition for review filed in the California Supreme Court and therefore are not exhausted. Moreover, respondent contends that such claims are not intertwined or even similar to petitioner's ineffective assistance of counsel claim. First, petitioner did not argue in his petition for review that the trial court erroneously excluded video clip #1 (petition claim 3, subpart 3), or that the combination of the trial court's errors and defense counsel's ineffective assistance required reversal (petition claim 3, subpart 4).
Finally, respondent argues that because petitioner had not exhausted his sixth claim prior to filing the instant petition, such claim should be rejected.
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . ."
The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondents' counsel. 28 U.S.C. § 2254(b)(3).
The state court has had an opportunity to rule on the merits when the petitioner has fairly presented the claim to that court. The fair presentation requirement is met where the petitioner has described the operative facts and legal theory on which his claim is based.
Nevertheless, it is also established that if a new petition is filed when a previous habeas petition is still pending before the district court without a decision having been rendered, then the new petition should be construed as a motion to amend the pending petition.
Petitioner did not set forth specific claims in the instant federal petition; rather, he appended his opening brief filed in the California Court of Appeal. In his third claim heading, petitioner argues that "The Trial Court's Errors Mandate Reversal of the Criminal Threats Conviction." (ECF No. 1 at 53.) In the body of his opening brief, petitioner argues the following four subparts to Claim 3: (1) The trial court erred when it erroneously sustained two prosecution hearsay objections which prevented defense counsel from questioning a witness, Robert Rascon, on whether he heard petitioner utter any threats (ECF No. 1 at 55-56); (2) defense counsel was ineffective for failing to object after the trial court sustained the prosecutor's hearsay objections, and failed to argue that the two questions asked of Rascon did not call for hearsay (ECF No. 1 at 57-58); (3) the trial court erred when it excluded a video clip identified as "Clip #1" (ECF No. 1 at 58-59); and (4) "the trial court's errors and defense counsel's ineffective performance require reversal under state standard set forth in
First, this renewed motion to dismiss requires the undersigned to reconsider the earlier finding that petitioner had exhausted Claim 3 by including it in his habeas petition filed in the California Supreme Court. Upon closer inspection of such petition, the court concludes it was not. (ECF No. 36 at 7-21.) Claim 3 bears no receipt or other stamp from the California Supreme Court, and is dated October 30, 2016. (ECF No. 21 at 19-27.) The California Supreme Court website reflects no additional filing on behalf of petitioner after he filed the petition for writ of habeas corpus raising claims 5 and 6 on September 26, 2016, and reflects that such petition was denied on November 9, 2016. (ECF No. 36 at 23.) Rather, it appears that after petitioner received the October 21, 2016 order advising him that Claim 3 was not exhausted, petitioner sent a letter to the California Supreme Court which was received by the court on November 14, 2016. (ECF No. 24 at 3.) However, by then, the petition had been denied. Therefore, unless petitioner can demonstrate that all of claim 3 was fairly presented to the California Supreme Court in connection with his other claims, the majority of claim 3 is unexhausted.
The court must now determine whether all of the subparts of petitioner's Claim 3 were fairly presented to the California Supreme Court.
As set forth above, a state court's highest court has had an opportunity to rule on the merits when the petitioner has fairly presented the claim to that court. The fair presentation requirement is met where the petitioner has described the operative facts and legal theory on which his claim is based.
General approaches to defining the "fair presentation" requirement, Federal Habeas Manual § 9C:35.
As conceded by respondent, petitioner's claim that defense counsel was ineffective for failing to object after the trial court sustained the prosecutor's hearsay objections was included in the petition for review. Thus, claim 3, subpart 2, is exhausted.
b.
Petitioner notes that he appended a copy of the state appellate court's opinion to the petition for review. "[O]rdinarily a state prisoner does not `fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so."
In the petition for review filed in the California Supreme Court, petitioner did not specifically raise subparts 1, 3 and 4 as stand-alone claims. Rather, in addition to his claim that there was insufficient evidence to support the criminal threats conviction, petitioner raised three claims of ineffective assistance of counsel: (1) failure to properly request admission of Clip #1, crucial exculpatory evidence relevant to the sustained fear element; (2) failure to object to the trial court's exclusion of Rascon's crucial exculpatory testimony that petitioner did not utter any threats; and (3) failure to object to the prosecutor's misconduct during closing arguments wherein the prosecutor misstated the law as to sustained fear. (LD 5.)
Petitioner presented the operative facts for subpart (1) in his petition for review because petitioner was required to provide the context for his related ineffective assistance of counsel claim. Petitioner argued in detail concerning defense counsel's failure to object to the trial court's exclusion of Rascon's testimony, and informed the California Supreme Court that the state appellate court found that "the trial court's evidentiary ruling was incorrect." (LD 5 at 25.) Petitioner also cited to both the Sixth and Fourteenth Amendments in the context of his ineffective assistance of counsel claim. (LD 5 at 2, 22.) Within the petition for review, appellate counsel noted the trial court's evidentiary error, and stated that "the trial court erred in sustaining the prosecutor's hearsay objection to the question that asked whether Rascon heard [petitioner] make a threat to Askari." (LD 5 at 23, 24; 27.) Counsel explained how Rascon's testimony was not hearsay, but "operative facts" directed to an element of the criminal threats offense. (LD 5 at 25.) Thus, petitioner articulated the relevant facts for both his claims that the trial court erred and that defense counsel was ineffective.
However, despite petitioner's reference to the Fourteenth Amendment in the context of his ineffective assistance of counsel claim, petitioner did not claim that his rights to a fair trial and to due process were violated by the exclusion of Rascon's testimony. As the Supreme Court stated: "If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court."
Moreover, unlike the two due process claims asserted in
In addition, as argued by respondent, the California Supreme Court was not required to decide whether or not the trial court erred in excluding Rascon's testimony. Rather, the court could simply address the prejudice prong, and find that even assuming, arguendo, the trial court erred, such error did not result in prejudice.
Finally, in
For all of these reasons, the court cannot find that petitioner fairly presented subpart (1), or that subpart (1) was sufficiently related or intertwined with his ineffective assistance of counsel claim to support a finding that subpart (1) is exhausted. Accordingly, subpart (1) is unexhausted.
In the petition for review before the California Supreme Court, petitioner did not argue that the trial court erroneously excluded Clip #1. Rather, petitioner argued that defense counsel was ineffective based on her failure to ask that Clip #1 be admitted as relevant to the sustained fear element. The court's prior ruling on the admission of such evidence was based on a "352 analysis of simply being cumulative," and the court even noted it previously offered defense counsel a chance to revisit the issue of showing Clip #1. (LD 5 at 14-15.) Defense counsel failed to do so: defense counsel "never articulated to the court that clip #1 was relevant to show Askari's lack of fear" from petitioner's alleged threats. (LD 5 at 17.)
In addition, because the petition for review was filed by counsel, it appears counsel chose not to include the trial court error claim in the petition for review.
Therefore, the undersigned cannot find that subpart (3) is intertwined or sufficiently related to petitioner's ineffective assistance of counsel claim to render subpart (3) exhausted. Accordingly, subpart (3) is unexhausted.
Similarly, as argued by respondent, petitioner included no part of subpart (4) in the petition for review. Thus, there is nothing to intertwine or find substantially similar to render subpart (4) exhausted. Subpart (4) is also unexhausted.
Because the fifth claim is withdrawn, it is no longer subject to the motion to dismiss. The Clerk of the Court is directed to strike the fifth claim from the petition (Claim V). (ECF No. 1 at 19, 70-71.)
Respondent is correct that petitioner had not exhausted claim 6 at the time he filed the petition. But, as argued by petitioner, there are circumstances in which a petition may proceed on claims not exhausted at the time the original petition is filed. Here, petitioner exhausted the claim during the pendency of this action, and is entitled to include such claim because the court has not yet ruled on the merits of the petition.
As noted above, petitioner exhausted Claim 6 on November 9, 2016, when the California Supreme Court denied the petition for writ of habeas corpus. (ECF No. 36 at 23.) Thus, petitioner is granted leave to file an amended petitioner to raise all of the claims pled in the original petition, including claim 6, but not including Claim 3, subparts (1), (3), and (4), which are not exhausted, and claim 5, which petitioner withdrew. In the alternative, petitioner may request that the court strike unexhausted subparts (1), (3), and (4) of Claim 3.
Accordingly, IT IS HEREBY ORDERED that:
1. Upon reconsideration, the undersigned vacates the March 30, 2017 finding that Claim 3 was exhausted by its inclusion in the petition for writ of habeas corpus filed in the California Supreme Court (ECF No. 29 at 1);
2. Upon reconsideration, the undersigned construes petitioner's pro se motions to accept newly-exhausted claims (ECF Nos. 22, 23) as a motion to amend, and grants petitioner leave to amend to include claim 6 nunc pro tunc as of November 15, 2016; and
3. The Clerk of the Court is directed to strike the fifth claim from the petition (Claim V) as requested by petitioner. (ECF No. 1 at 19, 70-71.)
Further, IT IS RECOMMENDED that:
1. Respondent's motion to dismiss (ECF No. 36) be partially granted; and
2. Within thirty days from the date of this order, petitioner shall file an amended petition or file a request to strike unexhausted claims, as set forth above.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." If petitioner files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.