(HC) Castillo v. Haws, No. 1:2012cv00302 - Document 19 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Barbara A. McAuliffe on 10/23/2012 recommending that 15 MOTION to DISMISS be denied and that 17 MOTION to STAY be dismissed as moot. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 11/29/2012(Lundstrom, T)
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(HC) Castillo v. Haws Doc. 19 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 RUDY CASTILLO, 11 Petitioner, 12 v. 13 F B HAWS, Warden, 14 Respondent. 15 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:12-cv—00302-LJO-BAM-HC FINDINGS AND RECOMMENDATION TO DENY RESPONDENT’S MOTION TO DISMISS THE PETITION (DOC. 15) FINDINGS AND RECOMMENDATION TO DISMISS AS MOOT PETITIONER’S MOTION FOR STAY AND ABEYANCE (DOC. 17) OBJECTIONS DEADLINE: THIRTY (30) DAYS 17 Petitioner is a state prisoner proceeding pro se with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 The matter has been referred to the Magistrate Judge pursuant to 20 28 U.S.C.§ 636(b)(1) and Local Rules 302 through 304. Pending 21 before the Court are two, intertwined motions. On May 14, 2012, 22 Respondent filed a motion to dismiss the petition because it is a 23 “mixed” petition containing some claims as to which state court 24 remedies were not exhausted; Respondent also filed supporting 25 documentation. In response, on June 6, 2012, Petitioner filed a 26 request for stay and abeyance of the petition so that he might 27 return to state court to exhaust state court remedies as to 28 1 Dockets.Justia.com 1 unexhausted claims. 2 for a stay on June 20, 2012. Respondent filed opposition to the request No reply has been filed. 3 I. 4 Because the petition was filed after April 24, 1996, the Proceeding by a Motion to Dismiss 5 effective date of the Antiterrorism and Effective Death Penalty 6 Act of 1996 (AEDPA), the AEDPA applies to the petition. 7 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 8 1484, 1499 (9th Cir. 1997). Lindh v. 9 A district court may entertain a petition for a writ of 10 habeas corpus by a person in custody pursuant to the judgment of 11 a state court only on the ground that the custody is in violation 12 of the Constitution, laws, or treaties of the United States. 13 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 14 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 15 16 (2010) (per curiam). 16 28 Rule 4 of the Rules Governing Section 2254 Cases in the 17 United States District Courts (Habeas Rules) allows a district 18 court to dismiss a petition if it “plainly appears from the face 19 of the petition and any exhibits annexed to it that the 20 petitioner is not entitled to relief in the district court....” 21 The Ninth Circuit has allowed respondents to file motions to 22 dismiss pursuant to Rule 4 instead of answers if the motion to 23 dismiss attacks the pleadings by claiming that the petitioner has 24 failed to exhaust state remedies or has violated the state’s 25 procedural rules. 26 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 27 a petition for failure to exhaust state remedies). 28 See, e.g., O’Bremski v. Maass, 915 F.2d 418, Further, a respondent may file a motion to dismiss after the 2 1 Court orders the respondent to respond, and the Court should use 2 Rule 4 standards to review a motion to dismiss filed before a 3 formal answer. 4 n.12 (C.D.Cal. 1982). 5 See, Hillery v. Pulley, 533 F. Supp. 1189, 1194 & In this case, upon being directed to respond to the petition 6 by way of answer or motion, Respondent filed the motion to 7 dismiss. 8 found in the pleadings and in copies of the official records of 9 state judicial proceedings which have been provided by the 10 11 12 13 parties, and as to which there is no factual dispute. The Court will therefore review Respondent’s motion to dismiss pursuant to its authority under Rule 4. II. 14 15 The material facts pertinent to the motion are to be Motion to Dismiss the Petition A. Background Petitioner’s petition (doc. 1) was filed on February 16, 16 2012, and transferred to this division of this Court on February 17 29, 2012. 18 In the petition, Petitioner alleges that he is an inmate of 19 the California State Prison at Los Angeles County (CSP-LAC) 20 serving a sentence of life without the possibility of parole plus 21 one year for first degree murder in the course of a robbery and 22 while armed with a firearm in violation of Cal. Pen. Code 23 §§ 187(a), 190.2(a), and 12022(a). 24 (Pet. l.) Petitioner raises the following claims in the petition: 1) 25 Petitioner’s rights under the Fifth Amendment and the Miranda 26 decision were violated when he was arrested at gunpoint and 27 questioned without understanding that he had a right to refuse to 28 answer questions and to wait for an attorney to come and help 3 1 him, and without ever indicating that he did so understand; 2) 2 Petitioner’s Sixth Amendment right to the effective assistance of 3 counsel was violated by his trial counsel’s prejudicial failure 4 to move to suppress Petitioner’s extra-judicial statement after 5 failing to ask Petitioner any questions concerning the mode of 6 his arrest or whether he ever indicated that he understood his 7 rights. 8 (Id. at 5.) The Court has reviewed documents filed by Respondent in 9 support of the motion to dismiss, namely, a petition for review 10 filed by Petitioner in the California Supreme Court (LD 1,1 case 11 number S175423), a petition for writ of habeas corpus filed in 12 the California Supreme Court (LD 3, case number S194485), and 13 orders denying those petitions (LD 2, LD 4). 14 Petitioner’s ineffective assistance claims related to the 15 alleged Miranda violation were not raised in Petitioner’s 16 petition for review in the course of his direct appeal. 17 Further, the copy of the petition for writ of habeas corpus filed 18 in the California Supreme Court shows that Petitioner raised the 19 claim that his Miranda rights were violated by admission of a 20 statement made to law enforcement officers during post-arrest 21 questioning because he did not understand his rights or indicate 22 that he understood and waived them. 23 raised a claim that his trial counsel was ineffective because he 24 failed to argue that Petitioner’s first statement to police 25 violated Miranda because Petitioner did not waive his rights. 26 (Id. at 9.) (LD 3, 7.) (LD 1.) Petitioner also 27 28 1 “LD” refers to documents lodged by Respondent in support of the motion to dismiss. 4 1 Petitioner did not expressly allege as grounds for the 2 habeas petition his trial counsel’s alleged failure to ask 3 Petitioner questions about the mode of his arrest or any 4 indication by Petitioner to the interrogating officers that he 5 understood his rights. 6 regarding his interrogation and alleged specifically that he did 7 not state or express that he understood and waived his rights 8 (id. at 7); further, he alleged that counsel did not respond to 9 questions from appointed appellate counsel regarding why he did However, Petitioner set forth details 10 not challenge the Miranda violation (id. at 9), and Petitioner 11 referred to appellate counsel’s declaration, in which appellate 12 counsel noted that trial counsel had sent a page of the 13 preliminary hearing transcript showing that a detective who 14 questioned Petitioner after his arrest testified in court that 15 Petitioner said during the interrogation that he understood his 16 rights. 17 (Decl., first page.) Also attached to the petition filed in the California 18 Supreme Court was a copy of the decision of the Superior Court of 19 the State of California for the County of Madera (MCSC) in a 20 habeas corpus proceeding filed by Petitioner. 21 detailed Petitioner’s claim regarding his trial counsel’s failure 22 to move to suppress Petitioner’s confession. 23 evidence admitted at an evidentiary hearing held in the MCSC on 24 the ineffective assistance claim, including trial counsel’s 25 testimony that he had asked Petitioner if Petitioner had told the 26 detective that Petitioner understood his rights, and that 27 Petitioner had responded that he nodded “yes” to the detective, 28 indicating that he had understood his rights. 5 The decision It summarized the (MCSC order at 2.) 1 The MCSC’s decision also noted that at the evidentiary hearing, 2 Petitioner denied having nodded “yes,” or having told his counsel 3 that he had done so. 4 the detective in the transcript of the interrogation suggested 5 that Petitioner had nodded that he understood his rights; 6 further, counsel had successfully moved to exclude another 7 statement. 8 all the evidence, counsel was credible, and Petitioner was not. 9 (Id. at 2-3.) 10 (Id.) The MCSC noted that one response of The MCSC expressly determined that in light of the B. Exhaustion of State Court Remedies 11 A petitioner who is in state custody and wishes to challenge 12 collaterally a conviction by a petition for writ of habeas corpus 13 must exhaust state judicial remedies. 14 The exhaustion doctrine is based on comity to the state court and 15 gives the state court the initial opportunity to correct the 16 state's alleged constitutional deprivations. 17 Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 18 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 19 1988). 20 28 U.S.C. § 2254(b)(1). Coleman v. A petitioner can satisfy the exhaustion requirement by 21 providing the highest state court with the necessary jurisdiction 22 a full and fair opportunity to consider each claim before 23 presenting it to the federal court, and demonstrating that no 24 state remedy remains available. 25 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 26 1996). 27 was given a full and fair opportunity to hear a claim if the 28 petitioner has presented the highest state court with the claim's Picard v. Connor, 404 U.S. 270, A federal court will find that the highest state court 6 1 factual and legal basis. 2 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 3 (1992), superceded by statute as stated in Williams v. Taylor, 4 529 U.S. 362 (2000) (factual basis). 5 Duncan v. Henry, 513 U.S. 364, 365 Additionally, the petitioner must have specifically told the 6 state court that he was raising a federal constitutional claim. 7 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 8 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala 9 v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 10 133 F.3d 1240, 1241 (9th Cir. 1998). 11 States Supreme Court reiterated the rule as follows: 12 13 14 15 16 17 18 19 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 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. 20 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule 21 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 22 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 23 Cir. 2001), stating: 24 25 26 27 28 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 7 1 2 3 4 5 6 7 8 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. 9 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 10 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 11 2001). 12 Where none of a petitioner’s claims has been presented to 13 the highest state court as required by the exhaustion doctrine, 14 the Court must dismiss the petition. Raspberry v. Garcia, 448 15 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 16 481 (9th Cir. 2001). Further, where some claims are exhausted 17 and others are not (i.e., a “mixed” petition), the Court must 18 dismiss the petition without prejudice to give Petitioner an 19 opportunity to exhaust the claims if he can do so. Rose, 455 20 U.S. at 510, 521-22; Calderon v. United States Dist. Court 21 (Gordon), 107 F.3d 756, 760 (9th Cir. 1997), en banc, cert. 22 denied, 118 S.Ct. 265 (1997); Greenawalt v. Stewart, 105 F.3d 23 1268, 1273 (9th Cir. 1997), cert. denied, 117 S.Ct. 1794 (1997). 24 However, the Court must give a petitioner an opportunity to amend 25 a mixed petition to delete the unexhausted claims and permit 26 review of properly exhausted claims. Rose v. Lundy, 455 U.S. at 27 520; Calderon v. United States Dist. Ct. (Taylor), 134 F.3d 981, 28 8 1 986 (9th Cir. 1998), cert. denied, 525 U.S. 920 (1998); James v. 2 Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). 3 4 C. Analysis A federal claim is fairly presented if raised in the 5 petition itself, an accompanying brief, or another similar 6 document filed with that court. 7 867, 880 (9th Cir. 2012) (citing Baldwin v. Reese, 541 U.S. 27, 8 32 (2004)). 9 is sufficient. 10 11 Gentry v. Sinclair, 693 F.3d Reference in an attachment or appendix to a petition Scott v. Schriro, 567 F.3d 573, 582-83 (9th Cir. 2009). Here, in the Supreme Court petition, Petitioner not only 12 identified the overarching failure of counsel to object to the 13 alleged Miranda violation, but also submitted the record of the 14 proceedings in the MCSC, which detailed the factual dispute 15 between Petitioner and his counsel with respect to both 16 Petitioner’s communications with counsel concerning any waiver 17 and the extent of counsel’s investigation into waiver. 18 Petitioner’s submission of facts relating to the alleged 19 ineffective assistance of counsel on the Miranda issue included 20 matter pertinent to the question of counsel’s investigation or 21 preparation on the issue. 22 the present petition regarding counsel’s alleged failure to 23 investigate his arrest or his purported waiver of Miranda rights 24 amount to reiterations of the factual matter set forth in the 25 Supreme Court petition in relation to counsel’s ineffective 26 assistance. 27 28 Petitioner’s more direct assertions in The Court of Appeals for the Ninth Circuit has recently summarized the pertinent legal standards concerning fair 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 presentation and new facts as follows: Constitutional claims must be “fairly presented” in state court to provide those courts an opportunity to act on them. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam). “It would be contrary to [the] purpose [of Section 2254(b)] to allow a petitioner to overcome an adverse state-court decision with new evidence introduced in a federal habeas court and reviewed by that court in the first instance effectively de novo.” Cullen v. Pinholster, 563 U.S. ––––, 131 S.Ct. 1388, 1399, 179 L.Ed.2d 557 (2011). Therefore, a claim has not been fairly presented in state court if new factual allegations (1) “fundamentally alter the legal claim already considered by the state courts,” Vasquez v. Hillery, 474 U.S. 254, 260, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); Beaty v. Stewart, 303 F.3d 975, 989–90 (9th Cir.2002), or (2) “place the case in a significantly different and stronger evidentiary posture than it was when the state courts considered it,” Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir.1988); accord Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir.1988). Dickens v. Ryan, 688 F.3d 1054, 1067 (9th Cir. 2012). Given the extent of the factual matter set forth by 15 Petitioner in the petition for writ of habeas corpus filed in the 16 California Supreme Court, Petitioner’s allegations here 17 concerning counsel’s failure to ask about the circumstances of 18 his purported waiver of Miranda rights neither fundamentally 19 alter the legal claim already presented nor place the case in a 20 significantly different and stronger evidentiary posture than it 21 was when the California Supreme Court considered it. 22 understands Petitioner’s claim to relate to counsel’s failure to 23 have the statement excluded from evidence, and it interprets 24 Petitioner’s references to counsel’s specific omissions in 25 questioning Petitioner to constitute factual matter in support of 26 such a claim. 27 28 The Court The Court further notes that reference to Petitioner’s motion for a stay, which includes a copy of the petition that 10 1 Petitioner would file in the California Supreme Court to exhaust 2 his claim, is consistent with such an interpretation. (Mot., doc. 3 17 at 7.) 4 The Court concludes that Petitioner fairly presented his 5 claim of ineffective assistance of counsel to the California 6 Supreme Court. 7 8 9 10 Accordingly, it will be recommended that Respondent’s motion to dismiss the petition as a mixed petition be denied. III. Petitioner’s Motion for a Stay In his motion for a stay, Petitioner argued that he had 11 presented his ineffective assistance claim in his petition for 12 writ of habeas corpus to the California Supreme Court. 13 further requested a stay in order to permit further exhaustion of 14 state court remedies in the California Supreme Court as to any 15 claim regarding which state court remedies were found not to have 16 been exhausted. 17 He As previously noted, the claim that Petitioner would raise 18 in the California Supreme Court is essentially the same claim 19 that he previously raised before that court. Because this Court 20 has concluded that Petitioner fairly presented his claim of 21 ineffective assistance of counsel to the California Supreme 22 Court, Petitioner’s request for a stay has been rendered moot. 23 24 Accordingly, it will be recommended that Petitioner’s motion for a stay and abeyance be dismissed as moot. 25 IV. 26 Accordingly, it is RECOMMENDED that: 27 1) Respondent’s motion to dismiss the petition as a mixed 28 Recommendation petition be DENIED; and 11 1 2 3 2) Petitioner’s motion for a stay and abeyance be DISMISSED as moot; and 3) Respondent be DIRECTED to respond to the petition no 4 later than forty-five (45 days) after the date of service of an 5 order adopting these findings and recommendations or otherwise 6 denying Respondent’s motion to dismiss, with all pertinent 7 portions of the Court’s previous order of March 15, 2012, 8 directing a response to the petition, remaining in effect. 9 These findings and recommendations are submitted to the 10 United States District Court Judge assigned to the case, pursuant 11 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 12 the Local Rules of Practice for the United States District Court, 13 Eastern District of California. 14 being served with a copy, any party may file written objections 15 with the Court and serve a copy on all parties. 16 should be captioned “Objections to Magistrate Judge’s Findings 17 and Recommendations.” 18 and filed within fourteen (14) days (plus three (3) days if 19 served by mail) after service of the objections. 20 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 21 § 636 (b)(1)(C). 22 objections within the specified time may waive the right to 23 appeal the District Court’s order. 24 1153 (9th Cir. 1991). 25 26 Within thirty (30) days after Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d IT IS SO ORDERED. Dated: 10c20k October 23, 2012 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 27 28 12
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