Opinion
NO. C 00-2775 MMC
August 21, 2001
ORDER DISMISSING PETITION WITHOUT PRETUDICE FOR LACK OF EXHAUSTION
Introduction
On August 3, 2000, Stephen Edward Hajek, a California prisoner under sentence of death, filed a pro se petition for a writ of habeas corpus, alleging that the California Supreme Court's delay in appointing state habeas counsel violates his right to due process and his constitutional right to counsel. As a remedy, he requests that this Court order the California Supreme Court to immediately appoint him state habeas counsel, or release him.
Upon consideration of the petition, the Court enters the following order.
Background
According to the petition, Hajek was sentenced to death in state court in 1995. He previously filed a pro se petition with this Court on January 25, 1999, alleging that the California Supreme Court's delay in appointing appellate counsel violated his right to due process. The Court dismissed that petition without prejudice on mootness grounds, based on the fact that the California Supreme Court appointed counsel to represent Hajek in his direct appeal on March 23, 1999. See August 31, 1999 Order (Case No. C 98-0816 MMC).
The current petition is not a "second or successive" petition subject to the restrictions of § 2244(b) of the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996 because Hajek's prior petition, which was dismissed without prejudice on mootness grounds, was not adjudicated on the merits. Cf Slack v. McDaniel, 529 U.S. 473, 478 (2000) (holding a habeas petition filed in district court after an "initial petition was dismissed without adjudication on the merits for failure to exhaust state remedies is not a "second or successive' petition"); Stewart v. Martimez- Villareal, 523 U.S. 637, 644-45 (1998) (holding petitioner's claim that he was incompetent to be executed, raised for the second time after being dismissed without prejudice for being premature, is not a second petition under AEDPA, and should be treated in the same manner as the claim of a petitioner who returns to federal court after exhausting remedies in state court).
Hajek subsequently filed a habeas petition with the California Supreme Court, alleging unconstitutional delay and requesting the immediate appointment of habeas counsel. The California Supreme Court denied this petition. See In re Halek, Case No. S088671.
Hajek's direct appeal is proceeding in state court.
Discussion
The Rules governing habeas corpus cases permit a district judge to summarily dismiss a petition when "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief" Rule 4 of the Rules Governing § 2254 Cases in the District Courts (Habeas Rules). In all other cases, the court is to order the respondent to file an answer or other appropriate pleading. Id. Here, for the reasons discussed below, it appears that Hajek is entitled to no relief at this time.
To be entitled to relief, Hajek must first satisfy the exhaustion requirement. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 515-16 (1982); Picard v. Connor, 404 U.S. 270 (1971). A claim is exhausted when it has been "fairly presented" to the highest state court with an opportunity to apply controlling legal principles to the facts bearing on the constitutional claim. Picard, 404 U.S. at 275. The exhaustion doctrine is grounded in a policy of federal-state comity: the State should be given the "initial `opportunity to pass upon and correct alleged violations of a prisoner's federal rights.'" Id. (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). The exhaustion requirement is not satisfied if there is a post-conviction proceeding, such as an appeal, still pending in state court, even if the issue to be challenged in the petition for writ of habeas corpus has been finally settled in the state courts. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). This is because, even if the federal constitutional question raised by the petitioner cannot be resolved in a pending state appeal, that appeal may result in the reversal of the petitioners conviction on some other ground, thereby mooting the federal question. See id.
The Sherwood rule does not apply, however, to cases where there is extreme delay in the state appellate process. Coe v. Thurman, 922 F.2d 528, 530-31 (9th Cir. 1990). Extreme delay in state appellate proceedings may excuse the exhaustion requirement. See 28 U.S.C. § 2254 (b)(1)(B)(ii) (holding exhaustion excused where "circumstances exist that render such [state] process ineffective to protect the rights of the applicant"); Coe v. Thurman, 922 F.2d at 530-31 (holding extraordinary delay in state appellate proceedings can render state corrective processes ineffective within the meaning of § 2254(b)). Thus, a petitioner who brings a due process claim arising from extreme delay in state appellate proceedings is not required to exhaust state remedies before obtaining federal review of his claim. Id. In such circumstances, it would be meaningless to send a petitioner back to state court on an exhaustion rationale when the essence of his due process claim arises out of his inability to exhaust state remedies. Id. at 530.
Form Hajek's petition, it would appear that he has exhausted the claims underlying the present petition. The California Supreme Court denied his state habeas petition, in which he requested "immediate appointment of habeas corpus counsel and hearing for constitutional delay remedy," on June 28, 2000. See In re Hajek, Case No. S088671. Nonetheless, because Hajek's direct appeal is currently pending, this Court must dismiss the petition for lack of exhaustion. See Sherwood, 716 F.2d at 634. Because the delay Hajek complains of is the delay in state habeas proceedings and not in the state appellate process, "Goe is inapplicable to his case. Unlike the petitioner in Coe who would be unable to exhaust state remedies if he were sent back to state court, Hajek will in fact exhaust his state remedies once his appeal is resolved. He must therefore await the resolution of his state appeal before seeking habeas relief in federal court. Accordingly, the Court will dismiss the petition without prejudice for lack of exhaustion.
Conclusion
For the reasons set forth herein, it is hereby ordered that the petition for writ of habeas corpus is dismissed without prejudice.