(HC) Ulukivaiola v. McEwen, No. 2:2010cv01350 - Document 21 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 08/22/11 recommending that respondent's 01/13/11 motion to dismiss be granted without prejudice, and that petitioner be granted leave to file an amended petition containing only exhausted claims. MOTION to DISMISS 17 referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, M)
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(HC) Ulukivaiola v. McEwen Doc. 21 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 GARY ULUKIVAIOLA, 11 Petitioner, vs. 12 13 No. CIV S-10-1350 WBS EFB P L.S. McEWEN, Warden, Respondent. 14 FINDINGS AND RECOMMENDATIONS / 15 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 16 17 U.S.C. § 2254. This action proceeds on the May 24, 2010 petition. Respondent moves to 18 dismiss on the ground that petitioner failed to exhaust state remedies with respect to certain of 19 his federal claims. Petitioner opposes, asserting that he effectively raised all claims below. For 20 the reasons explained below, the court finds that the petition contains an unexhausted claim and 21 therefore must be dismissed with leave to file an amended petition that contains only exhausted 22 claims. 23 //// 24 //// 25 //// 26 //// 1 Dockets.Justia.com 1 I. 2 Procedural History On March 2, 2007, petitioner was convicted of first-degree murder, among other charges, 3 after participating in the robbery and murder of a drug dealer. Dckt. No. 1 at 2, 8-19.1 4 Petitioner’s direct appeal of his conviction to the California Court of Appeal was denied, as was 5 petitioner’s petition for review filed with the California Supreme Court. Resp.’s Mot. to Dism., 6 Docs. Lodged in Supp. Thereof (hereinafter “Lodg. Docs.”) Nos. 1-6. Petitioner has not filed 7 any other requests for review of his conviction in the California Supreme Court. 8 II. 9 Exhaustion of State Remedies A district court may not grant a petition for a writ of habeas corpus unless the petitioner 10 has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1). A state will not be 11 deemed to have waived the exhaustion requirement unless the state, through counsel, expressly 12 waives the requirement. 28 U.S.C. § 2254(b)(3). 13 Exhaustion of state remedies requires that petitioners fairly present federal claims to the 14 highest state court, either on direct appeal or through state collateral proceedings, in order to give 15 the highest state court “the opportunity to pass upon and correct alleged violations of its 16 prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (some internal quotations 17 omitted). “[A] state prisoner has not ‘fairly presented’ (and thus exhausted) his federal claims in 18 state court unless he specifically indicated to that court that those claims were based on federal 19 law.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by, 247 F.3d 904 (9th Cir. 20 2000). “[T]he petitioner must make the federal basis of the claim explicit either by citing federal 21 law or the decisions of federal courts, even if the federal basis is self-evident . . . .” Id. (citations 22 omitted); see also Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (“a claim for relief in habeas 23 corpus must include reference to a specific federal constitutional guarantee, as well as a 24 statement of the facts that entitle the petitioner to relief”); Duncan, 513 U.S. at 365-66 (to 25 1 26 Page references herein refer to page numbers assigned by the court’s electronic docketing system and not those assigned by the parties. 2 1 exhaust a claim, a state court “must surely be alerted to the fact that the prisoners are asserting 2 claims under the United States Constitution”). 3 In addition to identifying the federal basis of his claims in the state court, the petitioner 4 must also fairly present the factual basis of the claim in order to exhaust it. Baldwin v. Reese, 5 541 U.S. 27, 29 (2004); Robinson v. Schriro, 595 F.3d 1086, 1101 (9th Cir. 2010). “[T]he 6 petitioner must . . . provide the state court with the operative facts, that is, ‘all of the facts 7 necessary to give application to the constitutional principle upon which [the petitioner] relies.’” 8 Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (quoting Daugharty v. Gladden, 257 F.2d 9 750, 758 (9th Cir. 1958)). 10 Where a petition contains both unexhausted and exhausted claims, the petition must be 11 dismissed with leave to amend to allow the petitioner to file an amended petition stating only 12 exhausted claims (either by exhausting the previously unexhausted claims prior to filing the 13 amended petition or by deleting the unexhausted claims from the petition). Rose v. Lundy, 455 14 U.S. 509, 522 (1982); Calderon v. U.S. Dist. Ct. (Taylor), 134 F.3d 981. 986 (9th Cir. 1998); 15 James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). Alternatively, the petitioner may seek a 16 stay of the federal proceedings while he attempts to exhaust the unexhausted claims. King v. 17 Ryan, 564 F.3d 1133 (9th Cir. 2009) (outlining two avenues for seeking a stay, one under Kelly 18 v. Small, 315 F.3d 1063 (9th Cir. 2002) and one under Rhines v. Weber, 544 U.S. 269 (2005)). 19 Petitioner has not requested a stay in this case. 20 III. 21 Analysis Broadly stated, petitioner’s sole claim in his federal petition is that the admission of a 22 non-testifying co-defendant’s out-of-court statements violated his confrontation and due process 23 rights as articulated by the U.S. Supreme Court in Bruton v. United States, 391 U.S. 123 (1968). 24 Dckt. No. 1 at 24-28. Petitioner raised this claim in his California Supreme Court petition for 25 review. However, respondent contends that, as articulated in the federal petition, the claim now 26 includes two sub-claims that were not raised below. 3 1 Specifically, respondent argues that the federal petition claims for the first time: (1) that 2 admission of non-testifying co-defendant Taholo’s out-of-court statements to his girlfriend about 3 the robbery (the “robbery hearsay”) for the limited purpose of corroborating co-perpetrator 4 Fahiua’s testimony violated the Sixth Amendment and due process “in and of itself” (Dckt. No. 5 17, Mot. to Dism. at 4) and (2) that admission of Taholo’s out-of-court statements to his 6 girlfriend about threats made against her (the “threats hearsay”) should have been excluded 7 under Bruton (id.). As to the first purported sub-claim, petitioner states that he is not separately 8 arguing that the admission of the statements for the purpose of corroboration violated his 9 constitutional rights, but that he is merely pointing out that the state courts’ determination that 10 the statements were admissible for purpose of corroboration illustrates that the statements 11 inculpated him and thus were inadmissible under Bruton. Dckt. No. 20 at 3. As to the second 12 purported sub-claim, petitioner concedes that he did not “delineate the exact portion of the taped 13 statements” that included the threats hearsay. He contends, however, that by generally 14 challenging Taholo’s “statements,” he sufficiently apprised the state courts that he challenged all 15 of Taholo’s out-of-court statements, including the threats hearsay. 16 The undersigned agrees with respondent in part and with petitioner in part. The petition, 17 while not a model of clarity as to the precise grounds raised, does not appear to raise a separate 18 claim that admission of the robbery hearsay for the purpose of corroboration violated the Sixth 19 Amendment and due process in some way other than that covered by Bruton (which held that 20 admission of out-of-court statements of a non-testifying co-defendant that implicated the 21 defendant violated the Sixth Amendment’s Confrontation Clause as well as due process). As the 22 court understands the petition, and in reliance on petitioner’s representation of his claims in his 23 opposition to the motion to dismiss, petitioner argues that the robbery hearsay, which was 24 admitted solely for the limited purpose of corroborating other testimony, violated the 25 confrontation clause and due process because it inculpated him; i.e., the corroborative nature of 26 the robbery hearsay did not take it outside the rule of Bruton but rather illustrated that it fell 4 1 within that rule. Accordingly, the undersigned finds that the first sub-claim identified by 2 respondent is part-and-parcel of petitioner’s Bruton argument that was presented below and is 3 accordingly exhausted. 4 However, the undersigned has reviewed the California Supreme Court petition for review 5 and concludes that petitioner did not fairly present his claim regarding the threats hearsay to that 6 state court. Petitioner did not, as he now argues, broadly challenge all of Taholo’s out-of-court 7 statements, including the threats hearsay, in his state petition for review. Instead, he very 8 specifically challenged the robbery hearsay and only the robbery hearsay in the portion of his 9 petition contending that the trial court had run afoul of Bruton. Lodg. Doc. No. 5 at 10 10 (challenging “former co-defendant Taholo’s extrajudicial statements to a former paramour 11 regarding the robbery” (emphasis added)), 11-12 (arguing that Taholo’s statements “conveyed 12 that he was not the shooter, so a cohort must have fired the fatal shot,” “indicated that he 13 [Taholo] did not act alone,” implied that someone other than Taholo bound the murder victim’s 14 girlfriend, and stated that another co-perpetrator’s truck had been used in the robbery). The 15 Bruton challenge in petition for review very clearly focuses solely on the robbery hearsay and 16 does not mention the threats hearsay. Because the inquiry under Bruton is fact specific – 17 whether an out-of-court statement’s admission violates the Constitution depends on the content 18 of the statement itself – the state court could not be expected to sua sponte review the record for 19 any and all of Taholo’s out-of-court statements to determine whether they were admissible under 20 Bruton when petitioner himself identified only the statements pertaining to the robbery. Thus, 21 the undersigned concludes that petitioner failed to fairly present to the state court his claim that 22 admission of the threats hearsay violated the Confrontation and Due Process Clauses under 23 Bruton, and this claim thus remains unexhausted. 24 //// 25 //// 26 //// 5 1 2 IV. Recommendation Because the petition contains an unexhausted claim, it is hereby RECOMMENDED that 3 respondent’s January 13, 2011 motion to dismiss be granted without prejudice, and that 4 petitioner be granted leave to file an amended petition containing only exhausted claims. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 7 after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 10 within the specified time may waive the right to appeal the District Court’s order. Turner v. 11 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 12 his objections petitioner may address whether a certificate of appealability should issue in the 13 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 14 § 2254 Cases (the district court must issue or deny a certificate of appealability when it 15 enters a final order adverse to the applicant). 16 Dated: August 22, 2011. 17 18 19 20 21 22 23 24 25 26 6
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