-SKO (HC) Jones v. Tate, No. 1:2010cv00068 - Document 26 (E.D. Cal. 2011)
Court Description: ORDER GRANTING Amendment of the Petition to Name Warden Mike McDonald as Respondent and ORDERING the Clerk to Substitute Mike McDonald as Respondent; FINDINGS and RECOMMENDATIONS Re: Respondent's Motion to Dismiss 18 , signed by Magistrate Judge Sheila K. Oberto on 2/23/2011, referred to Judge Ishii. Objections to F&R due by 3/31/2011. (Marrujo, C)
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-SKO (HC) Jones v. Tate Doc. 26 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 FREDRICK JONES JR., 10 Petitioner, 11 12 13 v. MIKE McDONALD, WARDEN, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—00068-AWI-SKO-HC ORDER GRANTING AMENDMENT OF THE PETITION TO NAME WARDEN MIKE McDONALD AS RESPONDENT AND ORDERING THE CLERK TO SUBSTITUTE MIKE McDONALD AS RESPONDENT FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS (DOC. 18) 16 DEADLINE FOR PETITIONER TO FILE OBJECTIONS: 17 THIRTY (30) DAYS 18 Petitioner is a state prisoner proceeding pro se and in 19 forma pauperis with a petition for writ of habeas corpus pursuant 20 to 28 U.S.C. § 2254. The matter has been referred to the 21 Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 22 302 and 303. Pending before the Court is Respondent’s motion to 23 dismiss the petition because it is a mixed petition containing 24 both exhausted and unexhausted claims. The motion was filed on 25 October 15, 2010. Petitioner filed an opposition and an amended 26 opposition on December 6, 2010, and January 19, 2011. No reply 27 was filed by Respondent. 28 1 Dockets.Justia.com 1 I. Substitution of Mike McDonald, Warden of High Desert State Prison, as Respondent 2 In this proceeding, the officer who has custody of the 3 petitioner must be named as the respondent. 28 U.S.C. § 2242; 4 Rule 2(a) of the Rules Governing Section 2254 Cases in the 5 District Courts (Habeas Rules). This is because the respondent 6 must have the power or authority to provide the relief to which a 7 petitioner is entitled. Smith v. Idaho, 392 F.3d 350, 355 n. 3 8 (9th Cir. 2004). A failure to name the proper respondent 9 destroys personal jurisdiction. Stanley v. California Supreme 10 Court, 21 F.3d 359, 360 (9th Cir. 1994). 11 However, personal jurisdiction, including the requirement of 12 naming the technically correct custodian under § 2242 and the 13 Habeas Rules, may be forfeited or waived on behalf of the 14 immediate custodian by the relevant government entity, such as 15 the state in a § 2254 proceeding. Smith v. Idaho, 392 F.3d 350, 16 355-56, 356 n.4 (9th Cir. 2004). A court has the discretion to 17 avoid delay and waste of the resources of the court and the 18 parties by recognizing a waiver instead of requiring formal 19 amendment of the petition by the petitioner. Id. at 356 n.6. 20 Here, Petitioner initially named Matthew Tate as the 21 Director of Corrections as Respondent. (Pet. 1.) However, in 22 the motion to dismiss, Respondent states that the proper 23 respondent is Mike McDonald, the current warden of High Desert 24 State Prison, where Petitioner is incarcerated. (Mot. 1:20-21, 25 28.) Further, the motion is filed on behalf of Respondent Mike 26 McDonald. (Id.) Respondent admits having custody of Petitioner 27 pursuant to the 2004 judgment of the Kings County Superior Court. 28 2 1 2 (Pet. 1: 23-24.) The Court concludes that any objection to jurisdiction has 3 been waived. 4 the Court finds it appropriate to substitute Warden Mike McDonald 5 as the Respondent in this proceeding. 6 7 In the exercise of its administrative discretion, The Clerk is DIRECTED to substitute Warden Mike McDonald as the Respondent in this proceeding. 8 II. 9 Because the petition was filed after April 24, 1996, the Proceeding by a Motion to Dismiss 10 effective date of the Antiterrorism and Effective Death Penalty 11 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh 12 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 13 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 14 A district court must award a writ of habeas corpus or issue 15 an order to show cause why it should not be granted unless it 16 appears from the application that the applicant is not entitled 17 thereto. 18 Section 2254 Cases in the United States District Courts (Habeas 19 Rules) permits the filing of “an answer, motion, or other 20 response,” and thus it authorizes the filing of a motion in lieu 21 of an answer in response to a petition. 22 Committee Notes, 1976 Adoption and 2004 Amendments. 23 the Court the flexibility and discretion initially to forego an 24 answer in the interest of screening out frivolous applications 25 and eliminating the burden that would be placed on a respondent 26 by ordering an unnecessary answer. 27 1976 Adoption. 28 take “other action the judge may order,” including authorizing a 28 U.S.C. § 2243. Rule 4 of the Rules Governing Rule 4, Advisory This gives Advisory Committee Notes, Rule 4 confers upon the Court broad discretion to 3 1 respondent to make a motion to dismiss based upon information 2 furnished by respondent, which may show that a petitioner’s 3 claims suffer a procedural or jurisdictional infirmity, such as 4 res judicata, failure to exhaust state remedies, or absence of 5 custody. 6 Id. In light of the broad language of Rule 4, it has been held 7 in this circuit that motions to dismiss are appropriate in cases 8 that proceed pursuant to 28 U.S.C. § 2254 and present procedural 9 issues that might limit consideration of the merits of the 10 petition. 11 (motion to dismiss for failure to raise any issue of federal law 12 based on the insufficiency of the facts as alleged in the 13 petition to justify relief as a matter of law); White v. Lewis, 14 874 F.2d 599, 602-03 (9th Cir. 1989) (procedural default in state 15 court); Hillery v. Pulley, 533 F.Supp. 1189, 1194 n.12 (E.D.Cal. 16 1982) (failure to exhaust state remedies considered after receipt 17 of evidence pursuant to Rule 7(a) to clarify whether or not a 18 possible defect, not apparent on the face of the petition, might 19 preclude a hearing on the merits). 20 circuit that the filing of a motion to dismiss is expressly 21 authorized by Habeas Rule 4. 22 Notes, 1976 Adoption and 2004 Amendments; Gutierrez v. Griggs, 23 695 F.2d 1195, 1198 (9th Cir. 1983). 24 O’Bremski v. Maas, 915 F.2d 418, 420 (9th Cir. 1990) It is established in this Habeas Rule 4 Advisory Committee The filing of a motion to dismiss instead of an answer was 25 authorized by the Court’s order of August 31, 2010, which 26 referred to the possibility of Respondent’s filing a motion to 27 dismiss and set forth a briefing schedule if such a motion were 28 filed. (Order, doc. 9, 4-5.) 4 1 Further, Habeas Rule 7 permits the Court to direct the 2 parties to expand the record by submitting additional materials 3 relating to the petition and to authenticate such materials, 4 which may include letters predating the filing of the petition, 5 documents, exhibits, affidavits, and answers under oath to 6 written interrogatories propounded by the judge. 7 7(a), (b). 8 that a defect not apparent on the face of the petition may 9 preclude a hearing on the merits, then the Court may proceed to Habeas Rule If, upon expansion of the record, the Court perceives 10 determine a motion to dismiss. 11 1189, 1196. 12 Hillery v. Pulley, 533 F.Supp. In Blackledge v. Allison, 431 U.S. 63, 80-81 (1977), the 13 United States Supreme Court suggested that summary judgment 14 standards should be used to test whether facially adequate 15 allegations have a sufficient basis in fact to warrant plenary 16 presentation of evidence. 17 record in a given case could demonstrate that an evidentiary 18 hearing is unnecessary, and the Court specifically advised that 19 there might be cases in which expansion of the record would 20 provide evidence against a petitioner’s contentions so 21 overwhelming as to justify a conclusion that an allegation of 22 fact does not raise a substantial issue of fact. 23 such circumstances, the petitioner is entitled to “careful 24 consideration and plenary processing of (his claim,) including 25 full opportunity for presentation of the relevant facts.” 26 82-83. 27 28 The Court noted that expansion of the Id. at 81. In Id. at Summary judgment standards were likewise applied in Hillery v. Pulley, 533 F.Supp. 1189, 1197 (E.D.Cal. 1982), where the 5 1 2 3 4 5 6 7 8 9 10 Court stated: The standards under Rule 56 are well known (footnote omitted). To paraphrase them for purposes of habeas proceedings, it may be said that a motion to dismiss a petition for habeas corpus made after expansion of the record may only be granted when the matters on file reveal that there is no genuine issue of material fact “which if resolved in accordance with the petitioner’s contentions would entitle him to relief... (citation omitted). Only if it appears from undisputed facts... that as a matter of law petitioner is entitled to discharge, or that as a matter of law he is not, may an evidentiary hearing be avoided.” (Citation omitted.) 533 F.Supp. 1197. In the present case, the record was expanded in connection 11 with the motion to dismiss to include facts concerning 12 Petitioner’s presentation of his claims to the state courts. 13 Pursuant to the foregoing standards, this expansion of the record 14 may permit summary disposition of the petition without a full 15 evidentiary hearing. 16 the application of the law to the facts, it does not appear that 17 the parties dispute any material facts concerning the pertinent 18 filings in state court. Further, although the parties disagree on 19 Accordingly, pursuant to Habeas Rule 4, the Court will 20 review the facts alleged in the petition and as reflected in the 21 evidentiary materials submitted by the parties in connection with 22 the motion to dismiss. 23 24 III. Exhaustion of Petitioner’s Claims A. Legal Standards 25 A petitioner who is in state custody and wishes to challenge 26 collaterally a conviction by a petition for writ of habeas corpus 27 must exhaust state judicial remedies. 28 The exhaustion doctrine is based on comity to the state court and 6 28 U.S.C. § 2254(b)(1). 1 gives the state court the initial opportunity to correct the 2 state's alleged constitutional deprivations. 3 Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 4 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 5 1988). 6 Coleman v. A petitioner can satisfy the exhaustion requirement by 7 providing the highest state court with the necessary jurisdiction 8 a full and fair opportunity to consider each claim before 9 presenting it to the federal court, and demonstrating that no 10 state remedy remains available. 11 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 12 1996). 13 was given a full and fair opportunity to hear a claim if the 14 petitioner has presented the highest state court with the claim's 15 factual and legal basis. 16 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 17 (1992), superceded by statute as stated in Williams v. Taylor, 18 529 U.S. 362 (2000) (factual basis). 19 Picard v. Connor, 404 U.S. 270, A federal court will find that the highest state court Duncan v. Henry, 513 U.S. 364, 365 Additionally, the petitioner must have specifically told the 20 state court that he was raising a federal constitutional claim. 21 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 22 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala 23 v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 24 133 F.3d 1240, 1241 (9th Cir. 1998). 25 States Supreme Court reiterated the rule as follows: 26 27 28 In Duncan, the United In Picard v. Connor, 404 U.S. 270, 275...(1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct’ alleged 7 1 2 3 4 5 6 violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. 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. 7 Duncan, 513 U.S. at 365-366. 8 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 9 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 10 11 12 13 14 15 16 17 18 19 20 21 22 The Ninth Circuit examined the rule Cir. 2001), stating: Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See, Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is "self-evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7... (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds, see, e.g., Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); Crotts, 73 F.3d at 865. ... In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is. 23 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 24 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 25 2001). 26 Where none of a petitioner’s claims has been presented to 27 the highest state court as required by the exhaustion doctrine, 28 8 1 the Court must dismiss the petition. 2 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 3 481 (9th Cir. 2001). 4 and others are not (i.e., a “mixed” petition), the Court must 5 dismiss the petition without prejudice to give Petitioner an 6 opportunity to exhaust the claims if he can do so. 7 U.S. at 510, 521-22; Calderon v. United States Dist. Court 8 (Gordon), 107 F.3d 756, 760 (9th Cir. 1997), en banc, cert. 9 denied, 118 S.Ct. 265 (1997); Greenawalt v. Stewart, 105 F.3d Raspberry v. Garcia, 448 Further, where some claims are exhausted Rose, 455 10 1268, 1273 (9th Cir. 1997), cert. denied, 117 S.Ct. 1794 (1997). 11 However, the Court must give a petitioner an opportunity to amend 12 a mixed petition to delete the unexhausted claims and permit 13 review of properly exhausted claims. 14 520; Calderon v. United States Dist. Ct. (Taylor), 134 F.3d 981, 15 986 (9th Cir. 1998), cert. denied, 525 U.S. 920 (1998); James v. 16 Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). 17 B. 18 19 Rose v. Lundy, 455 U.S. at Petitioner’s Claims 1. Procedural Background Petitioner is serving a sentence of fifty-two (52) years to 20 life imposed by the Kings County Superior Court in case number 21 03CM7616 for attempted murder, assault with a deadly weapon, 22 robbery, and burglary involving the use of firearms. 23 Mot. 1-2.) 24 notified the court of concerns that Petitioner was incompetent; 25 the court suspended criminal proceedings pursuant to Cal. Pen. 26 Code § 1368 and ordered a competency hearing. 27 to waive counsel and proceed pro se. 28 that Petitioner was competent to waive his right to counsel and (Pet. 1, 8; Before trial, Petitioner’s retained trial counsel 9 Defendant sought The trial court determined 1 to represent himself, and that he made a knowing and voluntary 2 waiver of his right to counsel. 3 motion to represent himself. 4 competency hearing, at which Petitioner represented himself, 5 waived a jury trial, and submitted the competency issue on two 6 medical reports. 7 competent to stand trial, and Petitioner continued to represent 8 himself throughout trial. 9 The court granted Petitioner’s The Court then commenced a § 1368 The trial court found that Petitioner was (LD 4, 2-3.) On November 14, 2006, in Petitioner’s initial appeal from 10 the judgment of conviction (California Court of Appeal, Fifth 11 Appellate District, case no. F046435), the state intermediate 12 appellate concluded that the trial court’s ruling on the motion 13 for self-representation while a competency hearing was pending 14 was a violation of Petitioner’s Sixth and Fourteenth Amendment 15 rights to counsel. 16 entitled to be represented by counsel at the competency hearing 17 pursuant to Cal. Pen. Code § 1368(a). 18 other issues raised by Petitioner, the Court of Appeal remanded 19 the matter to the trial court to determine whether or not a 20 retrospective competency hearing was feasible; if feasible, to 21 conduct the hearing, and if Petitioner were found competent to 22 stand trial, to reinstate the judgment. 23 It also noted that Petitioner had been Without considering the (Mot. 2; LD 4, 2-8.)1 The trial court found that a retrospective competency 24 hearing was feasible, held a trial on Petitioner’s competence, 25 found him competent, and reinstated the judgment. (L.D. 9, 2.) 26 27 28 1 “LD” refers to the numbers assigned in Respondent’s “NOTICE OF LODGING,” received on October 15, 2010, to the documents submitted to the Court by Respondent in connection with the motion to dismiss. 10 1 On January 26, 2009, in Petitioner’s second appeal (no. F053127), 2 the state intermediate appellate court considered issues 3 pertaining to the guilt trial as well as the competency 4 determinations made on remand, and affirmed the judgment of 5 conviction. 6 (Id. at 2-10.) A petition for review filed in the California Supreme Court 7 on February 26, 2009, was denied on April 22, 2009 (no. S170257). 8 (LD 12, 13.) 9 On February 24, 2009, Petitioner filed a petition for writ 10 of habeas corpus in the state intermediate appellate court, which 11 was denied on April 7, 2009. (LD 10, 11.) 12 On April 24, 2009, Petitioner filed a petition for writ of 13 habeas corpus in the California Supreme Court (no. S172355) (LD 14 14), which was denied on October 15, 2010 (LD 15). 15 16 2. Exhaustion of Specific Claims Reference to the documentation before the Court reflects 17 that Petitioner raised numerous claims before the California 18 Supreme Court. 19 Petitioner claimed that upon remand, the trial court applied 20 the standard for competence to stand trial which was insufficient 21 to determine competence to waive the right to counsel because it 22 did not address Petitioner’s actual understanding of the 23 significance and consequences of the decision to waive counsel 24 and represent himself. 25 entitled to a jury trial on the issue of competence to act as his 26 own attorney. 27 28 Petitioner further argued that he was (LD 12 at 2-3, 11.) Petitioner raised the following claims in his habeas petition in the California Supreme Court: 11 1) appellate counsel 1 Charles M. Bonneau rendered ineffective representation because he 2 a) failed to raise arguable issues on appeal, such as the trial 3 court’s denial of Petitioner’s motion for counsel of choice on 4 appeal, etc. (LD 14, 2-3), and b) failed to raise the issues in 5 the petition for review (LD 14, 4); 2) the appellate court erred 6 and deprived Petitioner of procedural due process by not 7 responding to Petitioner’s issue concerning the trial court’s 8 failure properly to respond to Petitioner’s motion for ancillary 9 funds (LD 14 at 3, 5); 3) the trial court erred and violated 10 Petitioner’s rights to equal protection of the laws under the 11 Sixth and Fourteenth Amendments by a) denying Petitioner’s motion 12 to quash the impaneled jury, and b) not including a questionnaire 13 in the appellate transcript (LD 14 at 3, 6); 4) appellate counsel 14 Charles M. Bonneau rendered ineffective representation and 15 violated Petitioner’s rights under the Sixth and Fourteenth 16 Amendments by failing to raise an arguable issue on appeal 17 concerning the trial court’s failure properly to respond to 18 Petitioner’s motion for ancillary funds (LD 14 at 3, 7); and 5) 19 in violation of Petitioner’s Sixth and Fourteenth Amendment 20 rights, appellate counsel Charles M. Bonneau failed to raise in 21 the petition for review an arguable issue concerning the trial 22 court’s failure to appoint counsel of choice for Petitioner (LD 23 14, 4). 24 C. 25 Claims Raised in the Petition before the Court Petitioner first alleges that the appellate court erred in 26 not reversing Petitioner’s case when it found that Petitioner was 27 denied counsel in a competency proceeding. 28 /// 12 (Pet. 12.) 1 Respondent interprets this contention as an assertion that 2 the appellate court erred in not reversing on all grounds raised 3 in the initial appeal, as opposed to reversing on only one 4 ground. 5 appellate court reversed the judgment; rather, it directed a 6 limited remand for the purpose of determinations concerning the 7 feasibility of a retrospective competency hearing and related 8 proceedings. 9 determination as to whether or not the judgment would be reversed 10 11 (Mot. 4:19-23.) However, it does not appear that the The appellate court expressly left the or affirmed to the trial court. (LD 4, 7-8.) Viewing the claim in context, Petitioner appears to contend 12 that once the appellate court found that Petitioner had been 13 denied counsel in a competency proceeding, it should have 14 reversed the judgment of conviction, as distinct from choosing 15 the remedy of a limited remand that would eventually result in a 16 determination by the trial court of whether or not the judgment 17 of conviction would be reversed. 18 in the petition for review or the petition for writ of habeas 19 corpus. 20 remedies as to this claim. 21 This contention was not raised Thus, Petitioner did not exhaust his state court In his second claim, Petitioner alleges that on remand, the 22 trial court erred by finding that a retrospective competency 23 determination was feasible, and by placing the burden on 24 Petitioner to prove incompetence. 25 present these issues to the California Supreme Court. 26 these claims are not exhausted. 27 28 (Pet. 12.) Petitioner did not Thus, In the third claim, Petitioner alleges that the appellate court erred in the initial appeal by not responding to the other 13 1 grounds raised in the opening brief in that proceeding. 2 12.) 3 the absence of representation by counsel at the competency 4 hearings, the argument that a retrospective competency hearing 5 would not remedy the situation, the trial court’s failure to 6 perform its duty to revoke Petitioner’s pro se status when it was 7 apparent that he was unable or unwilling to abide by procedural 8 rules, motions to disqualify judges and for ancillary services, 9 the erroneous failure of the trial court to appoint another judge 10 to determine what ancillary funds would be granted to Petitioner, 11 the trial court’s holding of hearings on funding in the presence 12 of the County Counsel and permitting County Counsel to argue 13 against funding, and the trial court’s improper response to the 14 motion for ancillary funds under California case law and 15 statutory law. 16 (Pet The grounds Petitioner refers to in the petition include (Pet. 12.) In his habeas petition, Petitioner argued to the California 17 Supreme Court that the appellate court deprived Petitioner of 18 procedural due process by not responding to Petitioner’s 19 contention concerning the trial court’s failure to respond 20 properly to Petitioner’s motion for ancillary funds. 21 3, 5.) 22 California Supreme court the appellate court’s failure to 23 consider any of the other issues that did not pertain to the 24 motion for ancillary funds and that were omitted from the 25 appellate court’s opinion in the initial appeal. 26 (LD 14 at It does not appear that Petitioner presented to the Therefore, with respect to Petitioner’s contentions 27 concerning the alleged denial of procedural due process resulting 28 from the appellate court’s failure to address additional issues 14 1 raised in the initial appeal, only the portion of the claim 2 concerning the trial court’s treatment of and ruling on 3 Petitioner’s motion for ancillary funds was exhausted. 4 Petitioner’s fourth claim in the petition before the Court 5 is that the appellate remand to the trial court and the 6 competency trial held on remand were improperly limited to 7 Petitioner’s competence to stand trial, and did not include 8 adequate consideration of Petitioner’s competence to assist 9 counsel or waive counsel. (Pet. 12.) These issues were 10 presented to the California Supreme Court in the petition for 11 review, and are thus exhausted. 12 In the fifth claim, Petitioner alleges that the trial court 13 failed to explain to Petitioner that he had a right to appointed 14 counsel during the competency hearing. 15 was not presented to the California Supreme Court, and thus it is 16 not exhausted. 17 (Pet. 12.) This issue In the sixth claim, Petitioner argues that the trial court 18 erred in not appointing Petitioner his counsel of choice for the 19 competency proceedings on remand. 20 not present this claim to the California Supreme Court. 21 Petitioner argued to that court that his appellate counsel had 22 rendered ineffective assistance by not raising the issue of 23 denial of counsel of choice, the specific issue of denial of 24 counsel of choice in the remanded proceedings was not actually 25 presented to the California Supreme Court. 26 the claim is not exhausted. (Pet. 12-13.) Petitioner did (LD 14, 2-4.) Although Thus, 27 In the seventh claim, Petitioner contends that the trial 28 court erred by finding that the prosecution had demonstrated that 15 1 two doctors’ reports constituted a preponderance of the evidence. 2 (Pet. 13.) 3 to evidence of competence. 4 to the California Supreme Court, and thus, it is not exhausted. This contention is reasonably understood as relating Petitioner did not present this claim 5 In the eighth claim, Petitioner alleges that the trial court 6 erred by not appointing counsel during the competency hearing and 7 then, after remand, appointing a “Conflict of Int[e]rest Counsel” 8 over Petitioner’s objections and despite three Marsden hearings. 9 (Pet. 13.) It is apparent from the appellate opinion following 10 the remand that on remand, counsel was appointed for Petitioner. 11 (LD 9, 2.) 12 hearing. 13 Supreme Court. 14 who was appointed on remand, Petitioner’s complaint was not 15 presented to the California Supreme Court. 16 eighth claim was not exhausted. 17 Thus, this claim must refer to the first competency Petitioner did not present this issue to the California Insofar as Petitioner complains of the counsel Thus, Petitioner’s In the ninth claim, Petitioner alleges that during the 18 competency proceedings after remand, the trial court erred by 19 placing the burden of proof on Petitioner instead of requiring an 20 affirmative showing of competency by the prosecution. 21 Petitioner did not present this issue to the California Supreme 22 Court. 23 (Pet. 13.) Thus, the claim is not exhausted. In the tenth claim, Petitioner alleges that the lower courts 24 overlooked Petitioner’s claim pursuant to People v. James Ary, 25 Jr., 173 Cal.App.4th 80 (2009). 26 granted in that case, which is now depublished. 27 concerned the burden of proof in retrospective competency 28 hearings. (Pet. 13.) Review has been The case Petitioner’s claim in the petition before the Court 16 1 is unclear and uncertain. 2 claim concerning this case to the California Supreme Court.2 3 Although Petitioner claims that he did so by a supplemental 4 affidavit or declaration to a petition, a review of the dockets 5 of the Supreme Court in cases that could possibly pertain to 6 Petitioner (nos. S136706, S126290, S170257, and S172355) reveals 7 no supplemental submissions.3 8 this claim was not exhausted. 9 However, Petitioner did not present a Thus, the Court concludes that Petitioner points to portions of the petition for writ of 10 habeas corpus filed in the California Supreme Court in which he 11 summarized not the grounds raised to that court, but rather the 12 grounds he had earlier raised in separate proceedings in the 13 intermediate state appellate court. 14 summary reference was sufficient to present the grounds to the 15 California Supreme Court. 16 that the appellate court erred in the first appeal by not 17 considering all of his grounds, Petitioner identified this ground 18 in the state habeas petition as one that was raised in an appeal. 19 (LD 14, 8.) 20 petition where grounds for relief raised in that very proceeding 21 were to be stated, Petitioner referred specifically only to the 22 appellate court’s failure to respond to Petitioner’s appellate Petitioner claims that this For example, with respect to his claim However, in the pertinent portion of the habeas 23 24 2 25 26 27 28 A predecessor of the case, People v. Ary, 118 Cal.App.4th 1016 (2004), was cited in the petition for review in connection with an argument concerning the inadequacy of the retrospective competency determination. (LD 12, 13.) 3 The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9 th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9 th Cir. 1981). 17 1 issue concerning the trial court’s mishandling of Petitioner’s 2 motion for ancillary funds. 3 mention of the several other issues that were likewise not 4 mentioned by the Court of Appeal. (LD 14 at 2, 5.) There was no 5 To satisfy the exhaustion requirement, the petitioner must 6 have fairly presented the substance of his federal claim to the 7 state courts. 8 constitutional provision, but a petitioner is expected to present 9 the state court with all the operative facts giving rise to the It is not necessary to identify any specific 10 asserted constitutional principle. 11 1467-68 (9th Cir. 1994), superseded by statute on other grounds, 12 28 U.S.C. § 2253. 13 affect exhaustion if the facts are merely supplemental, but it 14 renders a claim unexhausted if the differences fundamentally 15 alter the legal claim. 16 260 (1986). 17 Chacon v. Wood, 36 F.3d 1459, A change in facts alleged in a claim does not Vasquez v. Hillery, 474 U.S. 254, 257-58, Here, Petitioner did not present to the California Supreme 18 Court all the specific issues which he considered to have been 19 improperly disregarded by the appellate court; he merely 20 mentioned one such issue. 21 court’s ruling on his motion for ancillary funds; the other 22 issues included representation by counsel at a competency 23 hearing, the inadequacy of the remedy of a retrospective 24 competency hearing, revocation of Petitioner’s pro se status, and 25 motions to disqualify judges. 26 various claims are widely divergent. 27 28 The issue raised concerned the trial The factual predicates of the To add to this petition numerous sub-issues based on different facts would permit Petitioner to bypass presentation of 18 1 claims to the state’s highest court so long as one of a category 2 of issues was presented. 3 principles upon which the exhaustion doctrine rests. This is inconsistent with the 4 Further, it is established that a reference to a second 5 source or document where additional issues might be raised is not 6 sufficient to constitute presentation of a claim. 7 state prisoner does not fairly present a claim to a state court 8 if, in order to find the material in question, that court must 9 read beyond a petition, brief, or similar document that does not Generally a 10 itself alert the court to the presence of a federal claim. 11 Baldwin v. Reese, 541 U.S. 27, 32 (2004); accord, Castillo v. 12 McFadden, 399 F.3d 993, 1000 (9th Cir. 2005) (a statement of an 13 issue in motions and briefing in the trial court was held not 14 sufficient to alert an appellate court to the issue); Robinson v. 15 Kramer, 588 F.3d 1212, 1217 (9th Cir. 2009) (a trial transcript 16 reflecting the raising of an issue was not alone sufficient to 17 present the claim to the appellate court). 18 to the state intermediate appellate court does not constitute 19 presentation to the California Supreme Court. 20 Presenting an issue The Court notes that Petitioner represents that Respondent 21 has agreed that the petition is timely and that reversal is 22 required for some of Petitioner’s claims. 23 11.) 24 that Respondent has not conceded that the petition is timely or 25 that Petitioner is entitled to relief. 26 (Opp. [doc. 23], 10- The Court has reviewed the motion to dismiss and concludes The Court thus concludes that some of Petitioner’s claims 27 are exhausted, and some are not. 28 /// 19 1 IV. 2 In his initially filed opposition, Petitioner declared that Delay in Petitioner’s Access to Legal Materials 3 after the motion to dismiss was filed on October 15, 2010, 4 Petitioner sought a sixty-day extension of time to oppose the 5 motion because involvement in an altercation in prison resulted 6 in Petitioner’s being charged with the murder of another prisoner 7 and placement in segregated housing; Petitioner prepared the 8 opposition from memory because he was not allowed access to his 9 legal materials. (Doc. 23, 13-15.) In his supplemental 10 opposition filed on January 19, 2011, Petitioner states that 11 although he received some of his legal materials, he had not had 12 sufficient time to go through them. 13 supplemented his opposition by referring to the petition for writ 14 of habeas corpus that he filed in the California Supreme Court. 15 (Doc. 24.) 16 time. 17 motion and Petitioner’s ability to file an opposition, it does 18 not appear that the temporary restriction of Petitioner’s access 19 to his legal materials has affected his ability to respond to the 20 motion. 21 V. 22 In summary, the Court concludes that the petition is a mixed 23 24 Nevertheless, he Petitioner did not request any further extension of In view of the nature of the issues presented in this Recommendation petition. Where none of a petitioner’s claims has been presented to 25 the highest state court as required by the exhaustion doctrine, 26 the Court must dismiss the petition. 27 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 28 481 (9th Cir. 2001). Raspberry v. Garcia, 448 Further, where some claims are exhausted 20 1 and others are not (i.e., a “mixed” petition), the Court must 2 dismiss the petition without prejudice to give Petitioner an 3 opportunity to exhaust the claims if he can do so. 4 U.S. at 510, 521-22; Calderon v. United States Dist. Court 5 (Gordon), 107 F.3d 756, 760 (9th Cir. 1997), en banc, cert. 6 denied, 118 S.Ct. 265 (1997); Greenawalt v. Stewart, 105 F.3d 7 1268, 1273 (9th 8 However, the Court must give a petitioner an opportunity to amend 9 a mixed petition to delete the unexhausted claims and permit Rose, 455 Cir. 1997), cert. denied, 117 S.Ct. 1794 (1997). 10 review of properly exhausted claims. 11 520; Calderon v. United States Dist. Ct. (Taylor), 134 F.3d 981, 12 986 (9th Cir. 1998), cert. denied, 525 U.S. 920 (1998); James v. 13 Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). 14 Rose v. Lundy, 455 U.S. at The instant petition is a mixed petition containing 15 exhausted and unexhausted claims. 16 petition without prejudice unless Petitioner withdraws the 17 unexhausted claims and proceeds with the exhausted claims in lieu 18 of suffering dismissal. The Court must dismiss the 19 Therefore, it is RECOMMENDED that: 20 1) The Court GRANT Petitioner thirty (30) days from the 21 date of service of this order to file a motion to withdraw the 22 unexhausted claims; and 23 2) The Court INFORM Petitioner that in the event that 24 Petitioner does not file such a motion within the pertinent time 25 period, the Court will assume Petitioner desires to return to 26 state court to exhaust the unexhausted claims and will therefore 27 grant the motion to dismiss and will dismiss the petition without 28 21 1 prejudice.4 2 These findings and recommendations are submitted to the 3 United States District Court Judge assigned to the case, pursuant 4 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 5 the Local Rules of Practice for the United States District Court, 6 Eastern District of California. 7 being served with a copy, any party may file written objections 8 with the Court and serve a copy on all parties. 9 should be captioned “Objections to Magistrate Judge’s Findings Within thirty (30) days after Such a document 10 and Recommendations.” 11 and filed within fourteen (14) days (plus three (3) days if 12 served by mail) after service of the objections. 13 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 14 636 (b)(1)(C). 15 objections within the specified time may waive the right to 16 appeal the District Court’s order. Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 17 18 19 20 21 22 23 24 25 26 27 28 4 Petitioner is informed that a dismissal for failure to exhaust will not itself bar him from returning to federal court after exhausting his available state remedies. However, this does not mean that Petitioner will not be subject to the one-year statute of limitations imposed by 28 U.S.C. § 2244(d). Although the limitations period is tolled while a properly filed request for collateral review is pending in state court, 28 U.S.C. § 2244(d)(2), it is not tolled for the time an application is pending in federal court. Duncan v. Walker, 533 U.S. 167, 172 (2001). Petitioner is further informed that the Supreme Court has held in pertinent part: [I]n the habeas corpus context it would be appropriate for an order dismissing a mixed petition to instruct an applicant that upon his return to federal court he is to bring only exhausted claims. See Fed. Rules Civ. Proc. 41(a) and (b). Once the petitioner is made aware of the exhaustion requirement, no reason exists for him not to exhaust all potential claims before returning to federal court. The failure to comply with an order of the court is grounds for dismissal with prejudice. Fed. Rules Civ. Proc. 41(b). Slack v. McDaniel, 529 U.S. 473, 489 (2000). Therefore, Petitioner is forewarned that in the event he returns to federal court and files a mixed petition of exhausted and unexhausted claims, the petition may be dismissed with prejudice. 22 1 1153 (9th Cir. 1991). 2 3 IT IS SO ORDERED. 4 Dated: ie14hj February 23, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23
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