Opinion
Civil No. 05cv1303-LAB (NLS).
December 5, 2005
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: PETITION FOR WRIT OF HABEAS CORPUS
William J. Austin ("Petitioner"), is a California prisoner serving a 13-year sentence for assault. He has filed a pro se Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254 raising four separate claims challenging his sentence and conviction. [Dkt. No. 1.] Respondent has filed a motion to dismiss the Petition, arguing that Claim 4 and portions of Claim 3 are unexhausted. [Dkt. Nos. 9-11.] Petitioner has filed two separate oppositions to Respondent's motion, arguing that his claims have been exhausted. [Dkt. Nos. 12, 14.] Alternatively, he seeks leave to file an amended Petition that omits Claim 4, which he now concedes may not have been exhausted in state court. [Dkt. No. 16.] This Court has reviewed the Petition, Respondent's motion to dismiss, Petitioner's opposition, Petitioner's motion for leave to amend, and all supporting documents submitted by the parties. After a thorough review, the Court RECOMMENDS that the motion to dismiss be DENIED; that Claim 4 of the Petition be DENIED on the merits; and that the motion for leave to file an amended Petition which omits Claim 4 be DENIED as moot.
Background
On June 13, 2001, Petitioner assaulted several people at a restaurant after security guards tried to eject him for fighting with another patron. [Lodgment 7 (Unpublished opinion, California Court of Appeal, Fourth Appellate District, Division 1, dated August 20, 2003) at 2-3.] During the incident, he broke a restaurant employee's arm and cut another employee's head with a barstool. A third employee was thrown against a door, and a fourth was repeatedly kicked and punched. Although Petitioner left the scene, the victims and several eyewitnesses identified him as the perpetrator from photographic lineups. [ Id. at 2-4] Petitioner was convicted by a jury of two counts of assault by means of force likely to produce great bodily injury; one count of assault with a deadly weapon by means of force likely to produce great bodily injury, inflicting great bodily injury; and one count of assault. [ Id. at 1-2.] Based on his criminal record, which consisted of four misdemeanor convictions and two felony convictions, including a robbery conviction qualifying as a "strike" under California's Three-Strikes Law, the court sentenced him to a total of 13 years in prison. [ Id. at 5-6.]Petitioner appealed, raising a sufficiency-of-the-evidence claim and a claim that the trial court abused its discretion by not granting his motion to "strike," or disregard, his prior strike conviction in imposing the sentence. [Lodgment 4 (Appellant's Opening Brief before the California Court of Appeal, Fourth Appellate District, Division One, filed March 12, 2003).] The appellate court affirmed Petitioner's conviction and sentence. [Lodgment 7.] The California Supreme Court denied his petition for review. [Lodgment 8 (Petition for Review, filed September 29, 2003); Lodgment 9 (Unpublished order of the Supreme Court of California, dated November 12, 2003).]
After his direct appeal was completed, Petitioner filed a habeas petition with the state trial court raising ineffective-assistance-of-counsel claims. These claims were based on counsel's failure to object to the jury pool and to one of the alternate jurors who Petitioner claims was biased. Petitioner also raised a claim that the trial court erred in not granting his motion for a mistrial based on the admission of prejudicial hearsay testimony. [Lodgment 11 (Petitioner for Writ of Habeas Corpus in the Superior Court of California, filed November 19, 2003).] The trial court denied the petition on the merits. [Lodgment 12 (Order denying Petition for Writ of Habeas Corpus, dated December 4, 2003).] Petitioner then filed a habeas petition with the state appellate court raising the same claims. [Lodgment 14 (Petition for Writ of Habeas Corpus in the California Court of Appeal, Fourth Appellate District, Division One, filed March 2, 2004).] Around this same time he also filed a second habeas petition with the trial court, again raising the same claims. [Lodgment 13 (Petition for Writ of Habeas Corpus in the Superior Court of California, filed March 22, 2004).] The appellate court denied the petition on the merits in a reasoned opinion. [Lodgment 15 (Unpublished opinion of the California Court of Appeal, Fourth Appellate District, Division One, dated March 8, 2004).] The trial court denied Petitioner's second habeas petition as raising claims that had already been decided by the court. [Lodgment 13, Order of the Superior Court of California denying petition for writ of habeas corpus, dated May 4, 2004).] Petitioner then filed a habeas petition with California Supreme Court, raising the same claims. [Lodgment 18 (Petition for Writ of Habeas Corpus in the Supreme Court of California, filed July 8, 2004).] The court issued a summary denial of the petition. [Lodgment 19 (Unpublished order of the Supreme Court of California, dated June 8, 2005).]
For unknown reasons, Respondent has labeled six different documents as "Lodgment 13." For the sake of clarity, the Court refers to these documents according to their date. When submitting lodgments to the Court in the future, Respondent should ensure that each bound document bears a separate lodgment number.
Thereafter, Petitioner filed a third habeas petition with the trial court raising new ineffective-assistance claims. These claims were based on counsel's failure to present alibi witnesses, counsel's failure to present eyewitnesses who could have exculpated him, and counsel's failure to preserve certain issues for appeal. [Lodgment 13 (Petition for Writ of Habeas Corpus in the Superior Court, filed July 7, 2004).] The petition was denied as successive pursuant to In re Clark, 5 Cal.4th 750, 797-98 (Cal. 1993), a state case which requires a prisoner to present all his claims in single, timely petition. [Lodgment 13 (Order Denying Petition for Writ of Habeas Corpus, dated August 23, 2004).] Petitioner then filed a fourth habeas petition with the trial court raising a prosecutorial misconduct claim. [Lodgment 13 (Petition for Writ of Habeas Corpus in the Superior Court, filed April 26, 2005).] The petition was denied pursuant to Clark and, alternatively, on the merits. [Lodgment 13 (Order Denying Petition for Writ of Habeas Corpus, dated June 22, 2005).]
In June 2005, following the denial of his state petitions, Petitioner filed this Petition raising four separate claims: (1) the evidence was insufficient to support his conviction; (2) the trial court violated his due process rights by denying his motion for a mistrial; (3) he was denied his right to effective assistance of counsel; and (4) his sentence imposed under California's Three-Strikes Law violated the Double Jeopardy and Ex Post Facto Clauses of the U.S. Constitution. [Petition at 6-9.] Claim 3, based on ineffective assistance of counsel, has five subparts: Petitioner alleges that counsel failed to (a) present eyewitnesses "who were going to testify" that he was not the perpetrator; (b) subpoena alibi witnesses; (c) challenge an alternate juror for cause; (d) object to the jury pool because it did not contain a cross-section of the community; and (e) object to certain questioning by the prosecutor. [Petition at 8.]
Respondent moves to dismiss the Petition, arguing that Claims 3(a), (b), and (e) and Claim 4 are all unexhausted, and that the Petition is therefore mixed. [Respondent's Memorandum of Points Authorities ("Points Auth.") at 4-6.] Petitioner filed an opposition to the motion to dismiss, asserting that he properly exhausted Claims 3 and 4. [Petitioner's Motion in Opposition of Respondent's Request for Dismissal of Habeas Corpus ("Opp.") at 5-6; Notice of Motion and Motion of Opposition of Respondent's Request for Pending Petition for Writ of Habeas Corpus to be Dismissed at 2-3.] Subsequently, he submitted to the Court a motion for leave to file an amended petition that omits Claim 4, asserting that upon further consideration he has concluded that "ground number 4 may not have been exhausted in the state court." [Petitioner's Motion for Leave to Amend at 4.]
Petitioner actually submitted separate opposition briefs on November 9, 2005 and November 10, 2005, raising essentially the same arguments. [Dkt. Nos. 12, 14.] For ease of reference, the Court refers to the first filed document as the Opposition.
Analysis
This Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the merits by the state court unless that adjudication resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). A federal court may grant relief under the "contrary to" clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the "unreasonable application" clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. In deciding a state prisoner's habeas petition, the federal court applies a deferential review, inquiring only whether the state court's decision was objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). The state court's factual determinations are presumed correct, and the petitioner carries the burden of rebutting this presumption with clear and convincing evidence. 28 U.S.C.A. § 2254(e)(1).
In this case, Respondent argues that the Petition should be dismissed without prejudice because it contains unexhausted claims. [Points Auth. at 4-6.] The exhaustion of available state judicial remedies is a prerequisite to a federal court's consideration of a claim presented in a habeas corpus petition. See 28 U.S.C. § 2254(b)(1); Rose v. Lundy, 455 U.S. 509, 522 (1982). As a matter of comity, federal courts generally do not consider a claim until the state courts have had an "initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971). The exhaustion requirement also serves to prevent disruption of state judicial proceedings and economize scarce federal judicial resources. Rose, 455 U.S. at 518; Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982). A petitioner satisfies the exhaustion requirement by presenting the state court with both the controlling legal principles and the facts bearing upon his constitutional claim. Anderson v. Harless, 459 U.S. 4, 6 (1982). Exhaustion is accomplished if the state's highest court had an opportunity to rule on the merits of the claim. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999); Batchelor, 693 F.2d at 862-863.
Respondent argues that Claims 3(a) (counsel's failure to present eyewitnesses), (b) (counsel's failure to present alibi witnesses), and (e) (counsel's failure to object to questioning by the prosecutor) have not been exhausted. [Points Auth. at 4-5.] As Petitioner points out, he did raise an ineffective-assistance-of-counsel claim in state court, but that claim was based solely on counsel's failure to object to the jury pool and to one of the alternate jurors. [ See Lodgments 11-19.] Petitioner asserts that these new allegations are additional reasons that "simply fall under ineffective assistance of counsel and are not individual `grounds' that each need to be raised individually, because they are necessarily included issues of ineffective assistance of counsel." [Opp. at 2 (emphasis in original).] This is an incorrect statement of the law. Petitioner must fairly present the state court with both the operative legal principles and the facts surrounding his claim. Picard, 404 U.S. at 277-78; see also Kelly v. Small, 315 F.3d 1063, 1069 (9th Cir. 2003) (thorough description of operative facts and legal theory is necessary for proper exhaustion). With respect to his ineffective-assistance claims, he was required to present to the state court both the legal basis of the claim and the specific facts regarding how counsel was ineffective; he cannot add unrelated instances of counsel's ineffectiveness at this stage. Moorman v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005). Indeed, a claim based on counsel's failure to object to the jury pool is entirely distinct from a claim based on counsel's failure to present witnesses. If new facts alleged in federal court "fundamentally alter" the nature of the claim, the claim has not been fairly presented to the state courts. Vasquez v. Hillery, 474 U.S. 254, 260 (1986); see also Anderson, 459 U.S. at 6 (raising "somewhat similar" claim in state court insufficient to exhaust). Thus, the Court agrees with Respondent that Claims 3(a), (b), and (e) are unexhausted.
The Court is aware that Petitioner raised an ineffective-assistance claim based on counsel's failure to present alibi witnesses and eyewitnesses in his second habeas petition filed with the trial court, but the court rejected that petition as successive, and there is nothing in the record to suggest that Petitioner proceeded any further with this claim.
Respondent next argues that Petitioner failed to exhaust Claim 4, namely, that his sentence imposed under California's recidivist statute violated double jeopardy and ex post facto principles. [Points Auth. at 4-5.] On direct appeal, Petitioner raised a challenge to his sentence, arguing that the trial court abused its discretion in failing to "strike" his prior conviction when imposing a sentence. [Lodgment 4 at 20-25.] This claim was based entirely on state law, however. Petitioner did not invoke the Double Jeopardy Clause or the Ex Post Facto Clause of the U.S. Constitution, nor did he otherwise indicate to the state court that his claim was based on federal constitutional law. To properly exhaust a claim, a petitioner must make clear to the state court that his claim is based on federal law. Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000). Petitioner did not do so in this case. Indeed, he now appears to concede that Claim 4 was not exhausted in state court. [ See Petitioner's Motion for Leave to Amend.] For these reasons, the Court agrees with Respondent that Petitioner has not exhausted Claim 4.
That is not the end of the matter, however, because claims not presented in state court may nonetheless be considered "technically" exhausted "if it is clear that the claims are now procedurally barred under [state] law." Gray, 518 U.S. at 161. In other words, because the exhaustion requirement applies only to state remedies that are still available to the petitioner at the time of federal review, a habeas petitioner who would be barred from presenting his federal claims in state courts meets the technical requirements for exhaustion since there are no longer any state remedies "available" to him. Id.; Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005); Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001). Thus, the Court must consider whether Petitioner would be procedurally barred from raising Claims 3(a), (b), and (e) and Claim 4 if he were to return to state court, such that the claims should be considered "technically" exhausted. See Phillips, 267 F.3d at 974 ("[I]n determining whether a remedy for a particular constitutional violation is `available,' the federal courts are authorized, indeed required, to assess the likelihood that a state court will accord the habeas petitioner a hearing on the merits of his claim.") (quoting Harris v. Reed, 489 U.S. 255, 268 (1989) (O'Connor, J., concurring).)
As to Claims 3(a), (b) and (e), it is apparent from the record that Petitioner would be procedurally barred from raising these claims in further state court filings. Petitioner raised ineffective-assistance claims in his first round of state collateral review; these claims were denied on the merits at each level. [Lodgments 11, 12, 14, 15, 18 and 19.] He subsequently filed a habeas petition with the state trial court raising ineffective-assistance claims based on additional grounds. [Lodgment 13 (Petition for Writ of Habeas Corpus in the Superior Court, filed July 7, 2004).] The trial court denied the petition as successive pursuant to Clark, a clearly established and consistently applied state procedural rule under which "a defendant is not permitted to try out his contentions piecemeal by successive proceedings attacking the validity of the judgment against him." [Lodgment 13 (Order Denying Petition for Writ of Habeas Corpus, dated August 23, 2004) (quoting Clark, 5 Cal.4th at 767).] Under Clark, successive petitions will be summarily denied unless the prisoner can establish adequate justification for his failure to present all known claims in a single petition. Clark, 5 Cal.4th at 797-98; In re Robbins, 18 Cal.4th 770, 788 n. 9 (Cal. 1998). By refusing to entertain Petitioner's new ineffective-assistance claims, the state court necessarily concluded that he had failed to establish adequate justification for not presenting all his claims in a single petition. [ See Lodgment 13 (Order Denying Petition for Writ of Habeas Corpus, dated August 23, 2004).] Because Petitioner's ineffective-assistance of counsel claims have already met with a state procedural bar, it would be futile for him to now return to state court to present additional ineffective-assistance claims. The Court therefore finds that Claims 3(a), (b), and (e) have been "technically" exhausted and may proceed to briefing on the merits.
Although Petitioner may have cleared the exhaustion hurdle, the Court still must consider whether review on the merits is precluded under the procedural default doctrine based on Petitioner's failure to properly raise his claims in the state courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Gray, 518 U.S. at 162. Respondent states that he intends to argue procedural default as to some or all of the claims in the Petition if briefing on the merits is ordered. [Points Auth. at 6.]
Regarding Claim 4, the Court finds it unnecessary to decide whether this claim is also "technically" exhausted, because the claim is plainly frivolous. See 28 U.S.C.A. § 2254(b)(2). Under § 2254(b)(2), the Court may deny relief on the merits of a claim notwithstanding a petitioner's failure to exhaust "when it is perfectly clear that the applicant does not raise even a colorable federal claim." Cassett, 406 F.3d at 624. In Claim 4, Petitioner alleges that his sentence imposed under California's recidivist statute violated the Double Jeopardy and Ex Post Facto Clauses of the U.S. Constitution. [Petition at 6; Opp. at 5.] The double jeopardy claim is foreclosed by existing Supreme Court precedent. See Witte v. United States, 515 U.S. 389, 400 (1995) (recidivist statutes do not trigger double jeopardy concerns because "the enhanced punishment imposed for the later offense is not to be viewed as either new jeopardy or additional penalty for the earlier crimes, but instead as a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one") (citation and internal quotation marks omitted); Parke v. Raley, 506 U.S. 20, 27 (1992) ("we have repeatedly upheld recidivism statutes against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities") (citing Spencer v. Texas, 385 U.S. 554, 560 (1967)); Moore v. Missouri, 159 U.S. 673, 677 (1895) (recidivist statute permissibly "imposes a higher punishment for the same offense upon one who proves, by a second or third conviction, that the former punishment has been inefficacious in doing the work of reform, for which it was designed"). Regarding the ex poste facto claim, as the Ninth Circuit has observed, "[t]he Supreme Court and this court uniformly have held that recidivist statutes do not violate the Ex Post Facto Clause if they are on the books at the time the [present] offense was committed." United States v. Kaluna, 192 F.3d 1188, 1199 (9th Cir. 1999) (citations and internal quotation marks omitted). In this case, California's recidivist statute was enacted in 1994, and Petitioner's present offense was committed in 2001. See id. Petitioner therefore has failed to raise a colorable ex post facto claim. For these reasons, notwithstanding Petitioner's failure to exhaust, the Court RECOMMENDS that Claim 4 be DENIED on the merits. The Court further RECOMMENDS that Petitioner's Motion to file a First Amended Petition omitting Claim 4 be DENIED as moot.
To the extent Petitioner is also claiming the trial court abused its discretion under state law in imposing a sentence under the recidivist statute, this claim would not be cognizable in a federal habeas petition. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) ("federal habeas corpus relief does not lie for errors of state law."); Smith v. Idaho, 392 F.3d 350, 357 (9th Cir. 2004) (errors in application of state law not cognizable in federal habeas petition).
Conclusion
For all the above reasons, the Court RECOMMENDS:1. Respondent's Motion to Dismiss be DENIED;
2. Claim 4 of the Petition be DENIED on the merits;
3. Petitioner's motion to file a First Amended Petition omitting Claim 4 be DENIED as moot; and
4. Respondent be ordered to answer the remaining claims in the Petition, including addressing whether any of the remaining claims are procedurally defaulted.
This Report and Recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1) to the United States District Judge assigned to this case. No later than January 6, 2006, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be filed with the Court and served on all parties no later than January 20, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).