MITCHELL D. DEMBIN, Magistrate Judge.
This Report and Recommendation is submitted to United States District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California.
Raul Arellano ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, seeks federal habeas relief. (ECF Nos. 1, 6). After reviewing the Petition for Writ of Habeas Corpus ("Petition") (ECF No. 1), Respondent's Answer and Memorandum of Points and Authorities in support thereof ("Answer") (ECF No. 9), Petitioner's Traverse (ECF No. 11), supporting documents and pertinent state court Lodgments, the Court
"[A] determination of factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). The following facts, taken from the California Court of Appeal's January 14, 2013, decision on direct review have not been rebutted with clear and convincing evidence and must be presumed correct. 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747,749 n.1 (9th Cir. 2009).
(ECF No. 10-10 at 2-7).
On February 10, 2011, a San Diego Superior Court jury convicted Petitioner of seven counts of committing a lewd act on a child under 14 years old involving substantial sexual conduct (California Penal Code, §§ 288(s), 1203.066(a)(8); counts 3-9) and one count of unlawful sexual intercourse with a minor more than three years younger than him (Cal. Pen. Code § 261.5(c); count 10). (ECF No. 10-3 at 116-120). On April 21, 2011, the Superior Court sentenced Petitioner to 18 years and 8 months in prison and, in addition to other fines and fees, imposed a $10,000 restitution fine pursuant to Cal. Pen. Code § 1202.4(b). (Id. at 137).
On May 11, 2011, Petitioner filed a notice of appeal and raised the following grounds on appeal: (1) insufficient evidence for counts 3 through 9; (2) violation of right to unanimous jury for counts 3 through 9; (3) ineffective assistance of counsel; and (4) the trial court erred in denying his Marsden
On April 22, 2014, Petitioner filed a Petition for Writ of Habeas Corpus with the San Diego Superior Court. (ECF Nos. 10-13, 10-14, 10-15, 10-16, 10-17, 10-18; Case No.: EHC 976). The habeas petition was approximately 1000 pages long and listed ninety-eight grounds for relief. (Id.). Of these, fifty-four grounds were claims of ineffective assistance of counsel ("IAC"), which were denied for failure to submit full or partial transcripts of the preliminary hearing and trial proceedings, (ECF No. 10-19 at 3); sixteen grounds were also IAC claims but denied because they were raised and rejected on appeal, (Id. at 4); three grounds were found to be unintelligible, (Id. at 15); and the remaining grounds were denied on the merits. (ECF No. 10-19).
On October 24, 2014, Petitioner filed a Petition for Writ of Habeas Corpus with the San Diego Superior Court claiming he was denied due process at a hearing for violating prison rules. (ECF Nos. 10-20, 10-21; Case No.: HSC 11460). The superior court denied habeas relief on November 11, 2014. (ECF No. 10-22).
On June 12, 2015, Petitioner filed another Petition for Writ of Habeas Corpus, under the same court number, with the San Diego Superior Court claiming he was denied access to all of his legal materials. (ECF No. 10-23; Case No.: HSC 11460). Petitioner also requested that the court appoint an attorney and investigator. (Id.). On June 17, 2015, the superior court denied habeas relief as well as the request for a court appointed attorney and investigator. (ECF No. 10-24).
The San Diego Superior Court received correspondence from Petitioner dated July 13, 2015, requesting specific reporter's transcripts in order to prosecute a habeas petition. (ECF No. 1 at 76). On July 15, 2015, Petitioner filed undated correspondence requesting a subpoena duces tecum for the victim's school records and police officer investigatory notes. (Id. at 77). On September 25, 2015, the Superior Court denied the requests. (Id. at 75-79).
On February 16, 2016, the San Diego Superior Court received from Petitioner a Motion for Appointment of Counsel for purposes of discovery. (ECF Nos. 14-3, 14-4 at 2). On February 19, 2016, the Superior Court received a motion requesting a free copy of transcripts, arrest warrant and supporting affidavits, and a subpoena duces tecum. (ECF Nos. 14-1, 14-4 at 2). The Superior Court denied both motions on April 6, 2016. (ECF No. 14-4).
On May 31, 2016, Petitioner filed a Petition for Writ of Habeas Corpus with the California Court of Appeal (Fourth District, Division One) challenging the trial court's denial of his request for a free copy of the transcripts. (ECF No. 10-25; Case No.: D070396). The habeas petition did not challenge the superior court's denial of his request for a subpoena duces tecum. The Court of Appeal denied habeas relief on June 7, 2016. (ECF No. 10-26).
On June 12, 2016, Petitioner filed a Petition for Writ of Habeas Corpus with the California Court of Appeal (Fourth District, Division One) claiming "his counsel was ineffective for failing to advise [Petitioner] to produce evidence of his inability to pay the [restitution] fine." (ECF No. 10-27, 10-28 at 1; Case No.: D070489). The Court of Appeal denied habeas relief on June 20, 2016. (ECF No. 10-28).
On June 14, 2016, Petitioner filed a Petition for Review with the California Supreme Court challenging the trial court's denial of his request for a free copy of transcripts. (ECF No. 10-29). The petition for review did not challenge the superior court's denial of his request for a subpoena duces tecum. As part of the relief requested, however, Petitioner asked the court to grant a subpoena duces tecum for the victim's school record from September 2007 to April 5, 2008. (ECF No. 10-29 at 7). The California Supreme Court denied the petition without comment on August 10, 2016. (ECF No. 10-34).
On September 13, 2016, Petitioner, proceeding pro se, filed the instant Petition for Writ of Habeas Corpus. (ECF No. 1; Case No.: 16cv2337). On September 21, 2016, the Petition was dismissed without prejudice because Petitioner failed to satisfy the filing fee requirement. (ECF No. 3).
On May 31, 2017, Petitioner filed a document entitled "Motion to Put Aside Order Dismissing Case," in which Petitioner explained he never received a copy of the Court's September 21, 2016, Order and only learned of the dismissal after inquiring about the status of the case on May 20, 2017. (ECF No. 5). Because Petitioner asked the Court to permit him to submit his application to proceed in forma pauperis, the Court liberally construed the filing as a Motion for Extension of Time and Motion to Proceed In Forma Pauperis. (ECF No. 6). On June 20, 2017, the Court granted both motions and ordered the case reopened. (ECF Nos. 6, 7). On August 23, 2017, Respondent filed an Answer (ECF No. 9); Memorandum of Points and Authorities in Support of the Answer (ECF No. 9); and State Court Record Lodgments # 1 — 24. (ECF No. 10).
On September 6, 2017, Petitioner filed a Motion for Extension of Time to File Response. (ECF No. 12). On September 11, 2017, Petitioner filed a Traverse. (ECF No. 11). On September 13, 2017, this Court denied the Motion for Extension of Time as moot. (ECF No. 13).
On February 15, 2017, unaware of the order dismissing this case, Petitioner filed another federal Petition for Writ of Habeas Corpus. (See Case No.: 17cv354 at ECF No. 1). After Respondent filed a response to the second petition, Petitioner filed a motion on May 16, 2017, requesting: (1) a copy of the second habeas corpus petition; and (2) all trial transcripts cited by Respondent. (See Id. at ECF No. 12). The motion was granted and Petitioner was sent a copy of the habeas petition and State Court Record Lodgments. (See Id. at ECF No. 13).
On September 7, 2017, Petitioner filed another motion requesting, inter alia, (1) a copy of Exhibit D from the May 16 motion; and (2) a copy of the state habeas petition he filed for Case No. EHC-976 in April 2014. (See Id. at ECF No. 25). The motion was granted and Petitioner was sent a copy of Exhibit D and a copy of his state habeas petition. (See Id. at ECF No. 26).
"The Supreme Court has recognized that `[f]ederal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871[,] 42 U.S.C. § 1983.'" Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (citing Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam)).
Title 28 U.S.C. § 2254(a) provides the scope of review for federal habeas corpus claims:
(emphasis added).
Accordingly, "challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus; request for relief turning on circumstances of confinement may be presented in a § 1983 action." Nettles, 830 F.3d at 927 (internal quotations omitted) (citing Muhammad, 540 U.S. at 750). In other words, "if a state prisoner's claim does not lie at `the core of habeas corpus,' it may not be brought in habeas corpus but must be brought, `if at all,' under § 1983[.]" Nettles, 830 F.3d at 934 (citing Preiser v. Rodriguez, 411 U.S. 475, 487 (1973) and Skinner v. Switzer, 562 U.S. 521, 535 n. 13 (2011)).
The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254(d), as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("ADEPA"), which states:
In other words, "if the state court denies the claim on the merits, the claim is barred in federal court unless one of the exceptions to § 2254(d) set out in §§ 2544(d)(1) and (2) applies." Richter, 562 U.S. at 103. "This is a `difficult to meet' and `highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt[.]'" Cullen v. Pinholster, 563 U.S. 170, 181 (2011); White v. Woodall, 134 S.Ct. 1697, 1702 (2014) ("This standard, we recently reminded the Sixth Circuit, is difficult to meet.") (internal quotations omitted). "The petitioner carries the burden of proof." Pinholster, 563 U.S. at 181.
The state court's decision is "contrary to" clearly established federal law if it either "`applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or `confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [Supreme Court] precedent.'" Holley v. Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (O'Connor, J., concurring)).
The state court's decision is "an unreasonable application" of clearly established federal law "if `the state court identifies the correct governing legal principle' but applies the principle unreasonably to the prisoner's factual situation." Holley, 568 F.3d at 1098 (quoting Williams, 529 U.S. at 413).
"The `unreasonable application' clause requires the state decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Relief under § 2254(d)(1)'s "unreasonable-application clause" is available "if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no `fairminded disagreement' on the question." Woodall, 134 S.Ct. at 1706-07 (quoting Richter, 562 U.S. at 103).
"`[C]learly established Federal law' for purposes of § 2254(d)(1) includes only `the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.'" Woodall, 134 S.Ct. at 1702 (quoting Howes v. Fields, 565 U.S. 499, 505 (2012)). "In other words, `clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer, 538 U.S. at 71-72. "Circuit precedent may not serve to create established federal law on an issue the Supreme Court has not yet addressed." Holley, 568 F.3d at 1097. As such, "[i]f there is no Supreme Court precedent that controls a legal issue raised by a petitioner in state court, the state court's decision cannot be contrary to, or an unreasonable application of, clearly-established federal law." Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir. 2004).
Federal courts review the last reasoned decision from the state courts. See Ylst v. Nunnemaker, 501 U.S. 797, 804-06 (1991); Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). In deciding a state prisoner's habeas petition, a federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 6 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004).
In claim one, Petitioner contends he was denied his constitutional right of access to the courts when the state court denied Petitioner's request for a second set of transcripts for free. (ECF No. 1 at 18). In claim two, Petitioner contends he was denied due process and the right of access to the courts when the state court denied his request for a copy of the voir dire transcripts. (Id. at 21). In claim three, Petitioner contends the state court abused its discretion by not granting him a free copy of the arrest warrant and supporting affidavits, which are necessary to prosecute a state habeas petition. (Id. at 22).
Petitioner raised claims one, two, and three in his habeas petition to the state appellate court, which denied the claims on the merits. (ECF Nos. 10-25, 10-26). Petitioner raised all three claims in a petition for review to the state supreme court, which denied the petition without comment. (ECF Nos. 10-29, 10-34). Accordingly, this Court must "look through" to the state appellate court's opinion denying the claim as the basis for authority. Ylst. 501 U.S. at 805-06. That court wrote:
(ECF No. 10-26 at 1-2).
A federal district court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
Therefore, "habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release[.]" Heck v. Humphrey, 512 U.S. 477, 481 (1994) (emphasis added). The Ninth Circuit has specifically held "a petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings." Hubbart v. Knapp, 379 F.3d 773, 779 (9th Cir. 2004) (internal quotations omitted). Alleged errors in post-conviction relief proceedings cannot be elevated to federal constitutional status merely by using the label "due process violation." Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997).
If the claim is a cognizable federal habeas corpus claim, then Petitioner carries the burden of proving the state court adjudication of the claim either: (1) is contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) is an unreasonable determination of the facts. Pinholster, 563 U.S. at 181; 28 U.S.C. § 2254(d).
An indigent criminal defendant has an absolute right to trial transcripts on direct appeal. Griffin v. Illinois, 351 U.S. 12 (1956). There is not, however, an absolute constitutional right to a free copy of the record on collateral review. United States v. MacCollom, 426 U.S. 317 (1976) (interpreting 28 U.S.C. § 753(f) and applying to § 2255 habeas petition).
Petitioner contends his right of access to the courts was violated when the state court abused its discretion by denying his request for a second free copy of the trial transcripts, which Petitioner claims is necessary to prosecute a state habeas petition. (ECF No. 1 at 18). Petitioner argues he is an indigent defendant and therefore has a right to a second free copy of the trial transcripts because: (1) the prison's officials lost the first copy; and, (2) he meets the requirements to receive a free copy in collateral proceedings under U.S. v. MacCollom, 426 U.S. 317 (1976). (ECF No. 1 at 18, 11 at 5). Petitioner asks for this Court to grant him a free copy of the transcripts. (ECF No. 1 at 21).
Respondent argues this claim should be denied because it is not cognizable under 28 U.S.C. § 2254. (ECF No. 9-1 at 17). Respondent also argues the state court's decision cannot be contrary to, or an unreasonable application of, MacCollom because: (1) Petitioner has already received his one free set of transcripts during the direct appeal; and (2) in collateral proceedings, there is no constitutional right to transcripts. (Id. at 16-18).
Here, Petitioner does not challenge the fact or duration of his confinement, or seek an immediate or speedier release. Even if this court granted relief, it would not result in an immediate or speedier release. This is solely a claim alleging errors in a state post-conviction review process. Consequently, because he does not challenge the validity of his confinement or the particulars affecting its duration, Petitioner does not state a claim for relief that is cognizable on federal habeas review.
Even if the claim is cognizable, it still has two fatal defects. First, Petitioner argues that he satisfies MacCollom's requirements to receive a second free copy of transcripts under 28 U.S.C. § 753(f). Petitioner misinterprets MacCollom. Framed correctly, MacCollom states: "[28 U.S.C. § 753(f)] provides for a free transcript for indigent prisoners asserting a claim under § 225[4] if [the trial judge or a circuit judge] certifies that the asserted claim is `not frivolous' and that the transcript is `needed to decide the issue.'" MacCollom, 426 U.S. at 320-21 (quoting 28 U.S.C. § 753(f)) (emphasis added). Petitioner fails to demonstrate how the state court's denial of his request for a second copy of free transcripts is: (1) contrary to MacCollom; (2) an unreasonable application of MacCollom; or (3) an unreasonable determination of the facts.
Second, Petitioner admits he was already provided with the requested transcripts and was still requesting a copy of the habeas petition submitted in April 2014 (Case No.: EHC-976). (ECF No. 11 at 7). However, Petitioner was provided a free copy of that habeas petition per court order. (See Case No.: 17cv354 at ECF No. 26).
Accordingly, the Court
Petitioner contends the state court abused its discretion by denying Petitioner a free copy of the voir dire transcripts, violating his right of due process and access to the court. (ECF No. 1 at 21). In support of his claim, Petitioner cites: U.S. v. Odeneal, 17 F.3d 406, 420-21 (6th Cir. 2008); U.S. v. McMath, 559 F.3d 657, 664 (7th Cir. 2009); Williams v. Runnels, 432 F.3d 1102, 1107 (9th Cir. 2006); Parker v. Allen, 565 F.3d 1258, 1269 (11th Cir. 2009); and, U.S. v. MacCollom, 426 U.S. 317 (1976).
Respondent argues this claim should be denied because it is not cognizable under 28 U.S.C. § 2254. (ECF No. 9-1 at 17). Respondent also argues the state court's decision cannot be contrary to, or an unreasonable application of, MacCollom because there is no constitutional right to free transcripts in collateral proceedings. (Id. at 19). Further, Respondent argues Petitioner fails to show there was ever a transcript of the voir dire. (Id. at 18).
Because Petitioner challenges the state court decision denying his request for voir dire transcripts, Petitioner does not challenge either the fact or duration of his confinement, or seek an immediate or speedier release. Accordingly, claim two is also a claim alleging errors in the state post-conviction review process. Consequently, because Petitioner does not challenge the validity of his confinement or the particulars affecting its duration, he does not state a claim for relief that is cognizable on federal habeas review.
Even if this Court assumed claim two is cognizable, Petitioner again fails to satisfy either § 2254(d)(1) or (2). Although Petitioner provides several cases in support of his argument, only MacCollom is relevant as the other cases provided are federal appellate cases and, therefore, do not satisfy the "clearly established federal law" requirement of § 2254(d)(1). Petitioner also fails to indicate how the state court's denial of his request for a free transcripts is: (1) contrary to MacCollom; (2) an unreasonable application of MacCollom; or (3) an unreasonable determination of the facts.
Accordingly, the Court
Petitioner contends the state court abused its discretion by not granting a free copy of the arrest warrant and supporting affidavits, in violation of the Fourth Amendment. (ECF No. 1 at 22). Petitioner explains that he needs a copy of these documents to properly prosecute a state habeas petition. (Id. at 13).
Respondent argues this claim is not cognizable under 28 U.S.C. § 2254. (ECF No. 9-1 at 17). Respondent also argues this claim for an abuse of discretion by the state courts is not a federal constitutional claim. (Id. at 19).
Petitioner challenges the state court order denying his request for a free copy of the arrest warrant and supporting affidavits. Claim three does not challenge the state trial court's denial of habeas relief for ineffective assistance of counsel. This is evidenced by Petitioner's request for relief: "[I a]m here asking [the] Court to grant me a copy of this document so I can properly present my [IAC claim to] lower courts. Otherwise[,] courts will not hear my [IAC claim] due to me not having [these] documents from where I base my claim[.]" (ECF No. 1 at 22).
As with claims one and two, Petitioner does not challenge the fact or duration of his confinement, or seek an immediate or speedier release. Consequently, because Petitioner does not challenge the validity of his confinement or the particulars affecting its duration, Petitioner does not state a claim for relief that is cognizable on federal habeas review.
Even if this Court assumed claim three is cognizable, Petitioner again fails to satisfy either § 2254(d)(1) or (2). Petitioner, to support his argument, cites Franks v. Delaware, 438 U.S. 154 (1978). (ECF No. 1 at 22). Franks, however, is not applicable because it is not relevant to a court's discretion to provide free copies of an arrest warrant and supporting affidavits. Rather, the only issue presented in Franks addresses a Defendant's right to "challenge the veracity of a sworn statement used by police to procure a search warrant." Franks, 438 U.S. at 155-61 ("[Petitioner's] petition for certiorari presented only the issue whether the trial court had erred in refusing to consider his allegation of misrepresentation in the warrant affidavit."). Although Franks may be relevant to Petitioner's ineffective assistance of counsel claim made in his original state habeas petition, the case is not relevant to show abuse of discretion in denying a free copy of an arrest warrant and supporting affidavits.
Consequently, Petitioner fails to demonstrate how the state court's denial of his request for a free transcripts is either: (1) contrary to, or an unreasonable application of, clearly established Federal law; or (2) an unreasonable determination of the facts.
Accordingly, the Court
Petitioner contends in claim four the state court abused its discretion by not granting his request to issue a subpoena duces tecum. (ECF No. 1 at 23).
Petitioner filed a habeas petition with the state trial court listing ninety-eight grounds for relief, including fifty-four IAC claims denied for failure to submit full or partial transcripts of the preliminary hearing and trial proceedings. (ECF Nos. 10-13, 10-14, 10-15, 10-16, 10-17, 10-18, 10-19 at 3). Relevant to claim four in the current Petition is Ground 57 which alleges, inter alia, trial counsel's failure to investigate the victim's school records. (ECF No. 10-16 at 97). Specifically, Petitioner alleges he had the victim's school record from Sept. — Dec. 2007 in his possession before the start of his trial,
On July 15, 2015, the state trial court received a letter from Petitioner requesting a subpoena duces tecum for the victim's school records and also requested police investigatory notes. (ECF No. 1 at 75-79). The state trial court denied the request and provided a reasoned decision on the issue. (ECF No. 1 at 77-78).
On February 19, 2016, the state trial court received a motion from Petitioner again requesting, inter alia, a subpoena duces tecum, but only for the victim's school attendance records for September through December 2007. (ECF Nos. 14-1 at 4-5, 14-4). On April 6, 2016, the state trial court denied the request for both the victim's school records and police investigatory notes. (ECF No. 14-4 at 3). In doing so, the trial court explicitly stated the denial rested on the same reasons as the court's September 28, 2015, order denying request for free transcripts and for blank subpoenas. (Id.).
On May 31, 2016, Petitioner filed a habeas petition with the state appellate court raising only the above discussed transcript claims. (ECF No. 10-25). The petition did not challenge the state trial court's denial of his request for a subpoena duces tecum. The state appellate court denied habeas relief on June 7, 2016. (ECF No. 10-26).
On June 14, 2016, Petitioner constructively filed a petition for review in the state supreme court raising only the transcript claims. (ECF No. 10-29). The petition for review did not challenge the superior court's denial of his request for a subpoena duces tecum. As part of the relief requested, however, Petitioner asked the court to grant a subpoena duces tecum for the victim's school record from September 2007 to April 5, 2008. (Id. at 7). The state supreme court denied the petition without comment. (ECF No. 10-34).
Petitioner contends the state courts abused their discretion by denying his request for a subpoena duces tecum for the victim's school attendance records and police investigatory notes, in violation of the Fifth and Fourteenth Amendments. (ECF No. 1 at 23). Specifically, Petitioner requests: "I would like [this] Court to grant me my request about state court to issue a subpoena to [victim's] school so I can get her attendance record from Sept. 2007 — Dec. 2008, so I can prove my I.A.C. claim[.]" (Id.).
Respondent argues the claim is not cognizable under 28 U.S.C. § 2254. (ECF No. 9-1 at 17). Respondent also argues there is no federal constitutional violation presented in the denial by a state court to grant Petitioner a subpoena duces tecum in collateral proceedings. (Id. at 20).
Petitioners who wish to challenge a state court conviction or length of confinement in state prison must first exhaust state judicial remedies. 28 U.S.C. § 2254(b)-(c). "[T]he petitioner must `seek full relief first from the state courts, thus giving those courts the opportunity to review all claims of constitutional error.'" Dixon v. Baker, 847 F.3d 714, 718 (9th Cir. 2017) (citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)). To exhaust a claim, a petitioner may either: (1) "`fairly present[]' his federal claim to the highest state court with jurisdiction to consider it . . . or . . . demonstrate[] that no state remedy remains available." Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citing Picard v. Connor, 404 U.S. 270, 275 (1971), and Harmon v. Ryan, 959 F.2d 1457, 1460 (9th Cir. 1992)). When no state court remedies are available, the exhaustion requirement is satisfied. Id.
Additionally, federal courts have discretion to deny a habeas application on the merits notwithstanding a petitioner's failure to exhaust state remedies. 28 U.S.C. § 2254(b)(2). Even if the claim has never been presented to any state court, the district court can deny habeas relief if it does not present a cognizable claim. 28 U.S.C. § 2254(b)(2); Acosta-Huerta v. Estelle, 7 F.3d 139, 142 (9th Cir. 1992).
As stated previously, "habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release[.]" Heck, 512 U.S. at 481 (emphasis added). A "petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings." Hubbart, 379 F.3d at 779 (internal quotations omitted).
Accordingly, even if the claim has not been presented to any state court, habeas relief may be denied if the claim alleges errors in the state post-conviction review process because such claims are not cognizable through habeas proceedings.
Petitioner argues his Fifth and Fourteenth Amendment rights were violated when the state court abused its discretion by denying his request for a subpoena duces tecum. (ECF No. 1 at 23). Petitioner raises this argument for the first time here and has not presented this claim to any state court. Petitioner is not challenging the state court's denial of his state habeas claim of ineffective assistance of counsel for failure to investigate the victim's school records. Rather, Petitioner is arguing the state court abused its discretion when denying his July 15, 2015, and February 19, 2016, letters requesting the subpoena.
Although the Petition does not explicitly state which state court denial Petitioner challenges and does not cite the court order, it does provide: "[o]n one of my [i]nitial motions I stated that I needed for Court to issue a Subpoena Duces Tecum to [victim's school.]" (ECF No. 1 at 23). However, the lack of specificity as to which order is being challenged is of no consequence as the order denying the second letter rested on the same reasoning as the order denying the first letter. See Ylst, 501 U.S. at 805-06 (federal courts review the last reasoned decision from state courts).
Claim four does not challenge the fact or duration of Petitioner's confinement, nor seek an immediate or speedier release. As with the first three claims, claim four also alleges errors in the state post-conviction review process and does not challenge the validity of his confinement or the particulars affecting its duration. Therefore, Petitioner does not state a claim for relief that is cognizable on federal habeas review.
Accordingly, the Court
In the Petition, Petitioner requests the appointment of counsel to recover all of the evidence previously lost by prison staff. (ECF No. 1 at 24). Respondent, however, did not address this request. (ECF No. 9-1).
The Sixth Amendment right to counsel does not extend to federal habeas corpus actions by state prisoners. See McClesky v. Zant, 499 U.S. 467, 495 (1991); Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996) (noting that there currently exists no constitutional right to appointment of counsel in habeas proceedings). However, courts may appoint counsel for financially eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 where "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Whether to appoint counsel is a matter left to the court's discretion, unless an evidentiary hearing is necessary. See Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th Cir. 1986) (explaining that the interests of justice require appointment of counsel when the court conducts an evidentiary hearing on the petition).
A court's discretion to appoint counsel may be exercised only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an elevation of both the `likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these issues is dispositive and both must be viewed together before reaching a decision." Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
As discussed above, Petitioner's four claims are not cognizable for habeas relief under 28 U.S.C. § 2254. Petitioner cannot succeed on the merits of uncognizable claims. An analysis of the Petitioner's ability to articulate claims pro se is not necessary because the alleged claims are not cognizable. Consequently, this Court need not exercise discretion to appoint counsel because there has been no finding of exceptional circumstances.
Accordingly, the Court
In the Answer, Respondent requests the instant petition be consolidated with the February 2017 habeas petition under case 17cv354-AJB-AGS. (ECF No 9-1 at 16). Because this Court recommends that the instant petition be denied in its entirety, this Court is not recommending consolidation.
For the foregoing reasons,
