Opinion
Case No. EDCV 13-1513-VAP (JPR)
03-14-2014
VALEN ANDREW JONES, Petitioner, v. TIM PEREZ, Warden, Respondent.
ORDER TO SHOW CAUSE
On August 22, 2013, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254, raising five claims. On October 11, 2013, Respondent filed an Answer with an attached memorandum of points and authorities. Petitioner has not filed a reply.
In response to the question, "[i]f any of the grounds . . . were not previously presented to the California Supreme Court, state briefly which grounds were not presented, and give your reasons," Petitioner stated that he "had a conversation with one of the jurors and [that] because [he] couldn't remember his name the trial court denied [him] of his rights for a new trial." (Pet. at 6.) Petitioner has not presented this as a separate claim (see Pet. at 5-6 (listing claims)), nor has he pointed to any evidence in support of the allegation. See Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (conclusory allegations not supported by specific facts do not warrant habeas relief). In any event, even had Petitioner properly asserted this as a separate claim it would be unexhausted, given that he has never raised it in the state supreme court. See (Lodged Doc. 7); James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994). Accordingly, the Court declines to consider it.
On July 21, 2010, Petitioner was convicted by a Riverside County Superior Court jury of nine counts of second-degree robbery, in violation of California Penal Code section 211, and three counts of false imprisonment, in violation of section 236. (Lodged Doc. 1, 4 Clerk's Tr. at 885-87.) In connection with each count, the jury found that a principal was armed with a firearm, in violation of section 12022(a)(1). (Id.) On March 11, 2011, the trial court sentenced Petitioner to 17 years 8 months in prison. (Id. at 885.) Petitioner appealed his convictions, raising claims corresponding to grounds one, two, four, and five of the Petition. (Lodged Doc. 3.) On June 28, 2012, the California Court of Appeal affirmed Petitioner's judgment. (Lodged Doc. 6.) Petitioner thereafter filed a petition for review in the California Supreme Court, raising only claims corresponding to grounds one and two. (Lodged Doc. 7.) On September 17, 2012, the supreme court summarily denied review. (Lodged Doc. 8.) On December 7, 2010, Petitioner filed a habeas petition in the California Court of Appeal, raising claims corresponding to grounds one, two, and four; the court of appeal summarily denied it on December 17. (Lodged Docs. 9, 10.) Petitioner alleges that he filed a habeas petition with the California Supreme Court (Pet. at 4), but the case number he provided corresponds to his petition for review and not a habeas petition (see Lodged Doc. 7). Further, the Court's review of the California Appellate Courts' Case Information website shows that Petitioner has not filed any habeas petition in the supreme court. See Cal. Appellate Ct. Case Info. Website, http://appellatecases.courtinfo.ca.gov/ (last visited Mar. 11, 2014).
The habeas petition was filed before the trial court sentenced Petitioner.
Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a petitioner has exhausted the remedies available in state court. Exhaustion requires that the petitioner's contentions were fairly presented to the state courts and disposed of on the merits by the highest court of the state. See James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994). As a matter of comity, a federal court will not entertain a habeas petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in the petition. See Rose v. Lundy, 455 U.S. 509, 518, 102 S. Ct. 1198, 1203, 71 L. Ed. 2d 379 (1982). A federal court may raise the failure-to-exhaust issue sua sponte and summarily dismiss on that ground. See Stone v. City & Cnty. of S.F., 968 F.2d 850, 856 (9th Cir. 1992); see also Granberry v. Greer, 481 U.S. 129, 134-35, 107 S. Ct. 1671, 1675, 95 L. Ed. 2d 119 (1987).
A habeas petition "shall not be granted unless it appears that-- (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1).
In ground one, Petitioner argues that the trial court erred in denying a motion to exclude evidence of the final robbery, to which he pleaded guilty. (Pet. at 5.) In ground two, Petitioner argues that the trial court erred in not excluding "all 1101 evidence before the case went to the jury." (Id.) Petitioner fails to allege any federal constitutional violation, nor does he cite any applicable Supreme Court precedent or federal law in support of these claims. (Id.) The state court of appeal addressed and rejected them based on state law (Lodged Doc. 6 at 11-18), and this Court is bound by the state court's conclusion on an issue of state law. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S. Ct. 602, 604, 163 L. Ed. 2d 407 (2005) (holding that state court's interpretation of state law, including that announced on direct appeal of challenged conviction, binds federal habeas court); see also Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.") As a result, Petitioner's claims are not cognizable on federal habeas review. In any event, even if the Court liberally construed them to properly assert a due-process violation, neither claim would have been exhausted in state court because Petitioner relied only on state law in his petition for review to the California Supreme Court. See Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979) (holding that exhaustion requires habeas claims to have been "fairly presented" to state courts and disposed of on merits by state supreme court). A claim has been fairly presented only if the petitioner has described in the state court proceedings both the operative facts and the federal legal theory on which the claim is based. See Picard v. Connor, 404 U.S. 270, 276-77, 92 S. Ct. 509, 513, 30 L. Ed. 2d 438 (1971); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). Thus, grounds one and two of the Petition are not cognizable on federal habeas review and are in any event unexhausted.
In his opening brief to the court of appeal, Petitioner did assert that the alleged error was "a denial of the defendant's right to a fair trial[] and to the due process of law guaranteed by the federal constitution, applied to the states via the Fourteenth Amendment"; he also asserted that it "meets the general standard for federal constitutional errors." (Lodged Doc. 3 at 40, 62.) These general, nonspecific references to the U.S. Constitution, however, likely did not satisfy the exhaustion requirement. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (as modified) (holding that mere general assertion of "due process" violation insufficient to transform state-law claim into federal one). In any event, because Petitioner's petition for review nowhere even suggested a federal claim - instead, it sought review on the basis of "new and important issues of Evidence Code section 1101 law" (Lodged Doc. 7 at 36) - any federal aspect of the claims is nonetheless not exhausted. See James, 24 F.3d at 24.
In ground three, Petitioner alleges that he was "found guilty with reasonable doubt," seemingly a challenge to the sufficiency of the evidence. (Pet. at 5.) He raises the claim for the first time in the Petition. Thus, because Petitioner failed to fairly present the claim to any state court, it is unexhausted. See Carothers, 594 F.2d at 228.
To the extent Petitioner is raising the same argument he did in his state habeas petition - because the jury hung on some robbery charges, he should have been found not guilty of the others (Lodged Doc. 9 at 1) - the claim is patently frivolous. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (summary dismissal appropriate when allegations "patently frivolous or false" (internal quotation marks omitted)). In any event, the claim would still be unexhausted because it was never presented to the California Supreme Court.
In ground four, Petitioner alleges the trial court erred in determining that he was presumptively ineligible for probation given that he did not personally use a deadly weapon. (Pet. at 6.) In ground five, Petitioner alleges that the trial court failed to obtain a current probation report at sentencing. (Id.) Petitioner raised claims corresponding to grounds four and five on direct appeal (see Lodged Doc. 3) but did not raise them in his petition for review (see Lodged Doc. 7). Because Petitioner didn't raise these claims in the state supreme court, they are unexhausted. See James, 24 F.3d at 24.
Petitioner also raised ground four in his habeas petition to the state court of appeal. (See Lodged Doc. 9.)
In certain "limited circumstances," a district court may stay a "mixed" petition - that is, one raising both exhausted and unexhausted claims - and hold it in abeyance while the petitioner returns to state court to exhaust unexhausted claims. See Rhines v. Weber, 544 U.S. 269, 277, 125 S. Ct. 1528, 1535, 161 L. Ed. 2d 440 (2005). Fully unexhausted petitions, however - those in which none of the claims have ever been presented to the state supreme court - may not be stayed and held in abeyance. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). Rather, they must be dismissed. See id.; Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (affirming dismissal of fully unexhausted petition raising ineffective assistance of counsel and other claims); see also Roberts v. McDonald, No. EDCV 10-873 AHM (FFM), 2010 WL 2539762, at *3 & n.2 (C.D. Cal. June 17, 2010) (same, following Rasberry).
Generally, the answer to a habeas petition "must state whether any claim in the petition is barred by a failure to exhaust state remedies." Habeas R. 5(b). Respondent incorrectly stated that Petitioner exhausted his state remedies, apparently based on a mistake of fact. (See Answer at 2 (stating that "[Petitioner] has exhausted his state remedies by presenting his claims to the California Supreme Court in a petition for review," when in fact the petition for review raised only grounds one and two of the Petition).) Nonetheless, "[a] State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." 28 U.S.C. § 2254(b)(3). Respondent's mistaken belief that the claims had been exhausted does not prevent this Court from independently considering whether the Petition should be dismissed on that basis. See Day v. McDonough, 547 U.S. 198, 202, 126 S. Ct. 1675, 1679-80, 164 L. Ed. 2d 376 (2006) (holding that district courts have authority to consider forfeited habeas defenses when based on State's mistake of fact); Wood v. Milyard, 566 U.S. __, 132 S. Ct. 1826, 1833, 182 L. Ed. 2d 733 (2012) ("federal appellate courts have discretion, in 'exceptional cases,' to consider a nonexhaustion argument 'inadverten[tly]' overlooked by the State" (quoting Granberry, 481 U.S. at 132, 134)). Unlike the respondent in Wood, who on two occasions explicitly refused to assert a particular habeas defense and thus waived it, see 132 S. Ct. at 1834, Respondent here did not waive the defense, as it was not "knowingly and intelligently relinquished," id. at 1832 n.4; thus, this Court has "the authority to resurrect [it]," id. at 1833 n.5; see also Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998) (court may "insist on exhaustion of state remedies . . . to further the interests of comity, federalism, and judicial efficiency"). This case is "exceptional" because the Petition appears to be fully unexhausted and thus "must" be dismissed.
Eichwedel v. Chandler, 696 F.3d 660, 671 (7th Cir. 2012), held that "a State expressly waives exhaustion for purposes of § 2254(b)(3) where, as here, it concedes clearly and expressly that the claim has been exhausted, regardless of whether that concession is correct." This Court, however, is not bound by out-of-circuit decisions. Further, this dicta from Eichwedel appears to be in direct conflict with Wood's and Day's combined holding that an "inadvertent" oversight by the State based on a mistake of fact does not prevent a court from considering a "nonexhaustion argument." Wood, 132 S. Ct. at 1833; Day, 547 U.S. at 209-11. Although Eichwedel was decided four months after Wood, it does not cite or discuss it. The cases relied upon in Eichwedel, see 696 F.3d at 671 n.33, were all decided before Wood.
IT THEREFORE IS ORDERED that within 21 days of this Order, Petitioner show cause in writing why the Court should not recommend that this action be dismissed for failure to exhaust state remedies. See Wood, 132 S. Ct. at 1834 (petitioner must have "fair opportunity to present his position"). The matter will stand submitted for decision at that time unless the Court calls for further briefing. Petitioner is warned that his failure to timely and satisfactorily respond to this Order may result in his Petition being dismissed for the reasons stated above and for failure to prosecute.
A petitioner has the burden of showing that he has exhausted available state remedies. See Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972) (per curiam).
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JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE