Opinion
Civil No. 05cv1611-JM (NLS).
March 20, 2006.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE DENYING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
This Report and Recommendation is submitted to United States District Judge Jeffrey T. Miller, pursuant to 28 U.S.C. § 636(b) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.
I. FEDERAL PROCEEDINGS
Abuwi Mahdi, (hereinafter "Petitioner"), a state prisoner housed at Chuckawalla Valley State Prison at the time he initiated this action, is proceeding pro se and in forma pauperis with a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Respondent has filed a Motion to Dismiss the Petition on the grounds that Petitioner has not exhausted his state court remedies as to all claims presented in the Petition, and alternately requests the Court to order Petitioner to clarify his claims. (Doc. Nos. 9-10.) Respondent has also lodged portions of the state court record with the Court. (Doc. No. 12.) Petitioner alleges in the Petition that he presented his claims to the state supreme court in the two petitions for review he filed in that court (see Pet. at 4-5), and argues in his Opposition to the Motion to Dismiss that his claims are exhausted on that basis. (Doc. No. 13.)
For the following reasons, the Court finds that Respondent has not demonstrated that the Petition contains any unexhausted claims. The Court also finds that Petitioner's claims are sufficiently clear and there is no basis for an order directing Petitioner to clarify his claims. Accordingly, the Court recommends Respondent's Motion to Dismiss be DENIED and Respondent be directed to file a response to the Petition.
II. STATE PROCEEDINGS
Petitioner was convicted on October 19, 1999, in the San Diego County Superior Court, following a jury trial at which he represented himself, of assault with a deadly weapon in violation of California Penal Code § 245(a)(1), corporal injury to a spouse in violation of California Penal Code § 273.5(a), making a terrorist threat in violation of California Penal Code § 422, mayhem in violation of California Penal Code § 203, and disobeying a court order (violating a restraining order) in violation of California Penal Code § 273.6(a). (Lodgment No. 1, Clerk's Tr. at 260-61.) The jury also found true the allegations that Petitioner had personally used a deadly weapon (a knife) and had caused a physical injury, but deadlocked on the allegation that Petitioner caused great bodily injury. (Id.) Petitioner was found not guilty of attempted murder, and the jury deadlocked on the lesser included offense of attempted voluntary manslaughter which was later dismissed on the People's motion. (Id.) Petitioner's motion for a new trial was denied on December 15, 1999. (Id. at 291.) He was sentenced on February 16, 2000, to a state prison term of five years; execution of the sentence was stayed and Petitioner was placed on formal probation for five years. (Id. at 222-23, 294.) A notice of appeal was filed on April 11, 2000. (Id. at 226.)
On January 9, 2001, Petitioner's appointed appellate counsel filed an opening brief in the state appellate court which sought reversal of the convictions on the basis that Petitioner was neither competent to stand trial nor competent to represent himself at trial. (Lodgment No. 2.) Petitioner's request to substitute counsel was granted, and on August 3, 2001, his new appellate attorney filed a request to strike the argument sèction of the opening brief filed by previous counsel, and requested the court to not consider the arguments presented therein. (Lodgment No. 3.) Counsel instead requested the court to review the record pursuant to People v. Wende, 25 Cal.3d 436 (1970) and its progeny, which require the appellate court to review the record to determine whether there are any arguable appellate issues. (Lodgment No. 3.) On June 4, 2001, Petitioner submitted a pro se appellate brief to the court of appeal in which he identified 64 appellate issues. (Lodgment No. 4.) On August 27, 2001, the appellate court issued an order in which it denied Petitioner's request to strike the argument section of the original opening brief. (Lodgment No. 5.)
The appellate court affirmed Petitioner's convictions in an unpublished opinion filed on September 17, 2001. (Lodgment No. 6,People v. Mahdi, No. D035514, slip op. (Cal.Ct.App. Sept. 17, 2001.) The court rejected claims that the trial court had erred by failing to declare a doubt as to Petitioner's competency and by failing to order a hearing on the issue, and rejected the claim that Petitioner was not competent to represent himself; the court did not address or identify any other issues and did not reference Petitioner's pro se brief. (Id.)
Respondent has lodged a copy of Petitioner's pro se appellate brief which contains a docket stamp indicating it was lodged with the state appellate court on June 4, 2001. (Lodgment No. 4.) However, a review of the docket on the state court's website reveals that the pro se brief was not filed in the appellate court. See http://www.courtinfo.ca.gov (last visited Mar. 15, 2006); Smith v. Duncan, 297 F.3d 809, 815 (9th Cir. 2002) (court may take judicial notice of relevant state court documents which have a direct relationship to issues before the court). Petitioner indicated in his subsequent petition for review that his pro se brief had been returned to him by the appellate court without having been filed. (Lodgment No. 7 at 2.)
On October 29, 2001, Petitioner filed a pro se petition for review in the state supreme court. (Lodgment No. 7.) Petitioner characterized the appellate brief filed by his original appellate attorney as a fraudulent document, characterized the appellate court justices who ruled on his appeal as "shameless whores" for refusing to strike that brief and for addressing the claims presented therein, and attached and incorporated the pro se appellate brief he had attempted to file in the appellate court which identified 65 appellate issues. (Lodgment No. 7.) The California Supreme Court denied the petition for review on December 12, 2001, with an order which stated in full: "Petition for review DENIED." (Lodgment No. 8, People v. Mahdi, No. S101752, slip op. (Cal. Dec. 12, 2001).
The copy of the petition lodged by Respondent does not contain a date stamp. The filing date was taken from the state court website. See http://www.courtinfo.ca.gov (last visited Mar. 15, 2006).
Petitioner's probation was revoked on May 21, 2002, after he admitted to failing to attend a domestic violence class, but he was allowed to remain at liberty under modified probation terms. (Lodgment No. 10, Clerk's Tr. at 87.) Petitioner's probation was summarily revoked on September 6, 2002, following allegations he had made a threat, and he was remanded to custody without bail pending an evidentiary hearing. (Id. at 89.) Petitioner represented himself at the subsequent probation revocation hearing, and on September 26, 2002, following an evidentiary hearing, the trial judge found that Petitioner had willfully violated probation by failing to complete a one-year domestic violence class and by making threats in a letter mailed to the Union Bank; the trial judge terminated probation and ordered immediate execution of the five-year prison term previously imposed. (Id. at 56-58, 62, 90-94.)
Petitioner's appointed appellate counsel filed an appeal of the probation revocation judgment in the state appellate court. (Lodgment No. 11.) The appellate brief presented no arguable appellate issues, but instead requested the court to review the record for errors pursuant to People v. Wende, 25 Cal.3d 436 (1979), and identified possible but not arguable appellate issues pursuant to Anders v. California, 386 U.S. 738 (1967), including whether sufficient evidence supported a finding that Petitioner had violated a term of his probation, whether the trial court had erred in excluding certain evidence at the probation revocation hearing, and whether the trial court had erred in initially imposing the five-year prison term. (Lodgment No. 11.) On February 17, 2004, the appellate court denied Petitioner's request to strike the opening brief filed by his appellate attorney, and denied his request for a new attorney. (Lodgment No. 13.) On March 30, 2004, the appellate court affirmed the probation revocation judgment in an unpublished opinion which found that a review of the record pursuant toWende, including the possible issues referred to the court under Anders, had disclosed no reasonably arguable appellate issues. (Lodgment No. 12, People v. Mahdi, No. D041565, slip op. (Cal.Ct.App. Mar. 30, 2004).) On April 29, 2004, the appellate court construed a letter submitted by Petitioner as a petition for rehearing, and denied the petition. (Lodgment No. 14.)
Petitioner submitted an untimely petition for review to the state supreme court on May 26, 2004, which the Court permitted to be filed on June 11, 2004; the petition was denied on July 14, 2004, in an order which stated: "Petition for review DENIED." (Lodgment Nos. 15-17.)
III. PETITIONER'S CLAIMS
(1) Petitioner received ineffective assistance of appellate counsel because his first appointed appellate counsel filed a fraudulent brief falsely contending he was incompetent to stand trial or to represent himself, and because both appointed appellate counsel either failed to recognize or joined in a conspiracy between the superior court judge and the prosecuting attorney to fraudulently conceal victim and witness statements in order to create a false impression that Petitioner was suffering from a delusional disorder, all for the primary purpose of concealing the 65 valid appellate issues Petitioner eventually submitted to the appellate court in a pro se brief which that court ignored. (Pet. at 6-7.)
(2) The state court abused its discretion in connection to his original trial when it ignored evidence of tampering with court transcripts and evidence that Petitioner's signature had been forged by five separate individuals on four hundred checks. (Pet. at 6-7.)
(3) The state court abused its discretion in connection to the probation revocation evidentiary hearing by ignoring findings by the state appellate court on direct appeal that Petitioner was not suffering from a delusional disorder and that a false criminal history had been relied upon at the original trial. (Pet. at 10.)
(4) Petitioner was denied due process when the state superior court refused to appoint a handwriting expert to examine and verify that his signature was forged on the Union Bank letter which was used to support the finding at the parole revocation hearing that Petitioner had made a threat. (Pet. at 10.)
IV. DISCUSSION
Respondent contends that Petitioner failed to present the ineffective assistance of counsel or conspiracy aspects of claim one, or the implied federal due process aspect of claim four, to the state supreme court because they were not timely presented to the appellate court, and that those aspects of claims one and four are therefore unexhausted. (Respondent's Memorandum in Support of Motion to Dismiss ["MTD Mem."] at 7.) Respondent contends the Petition is therefore "mixed" and must be dismissed. (Id. at 9.) Respondent argues that state court remedies remain available to Petitioner with respect to these claims because he has never filed a state habeas petition, but reserves the right to argue that any procedural bar which might he imposed by the state court if Petitioner presents the claims in a state habeas petition, may render the claims procedurally defaulted in this Court. (Id. at 9-10.) Respondent also acknowledges that pursuant to 28 U.S.C. § 2254(b)(2), the Court may deny these claims notwithstanding Petitioner's failure to exhaust, and requests an additional opportunity to brief the merits of the claims if the Court chooses to apply that provision. (Id. at 10.) Finally, Respondent requests that in the event the Court denies the Motion to Dismiss, it order Petitioner to clarify his claims. (Id.) Petitioner argues that his claims are exhausted because he presented them in the two petitions for review he filed in the state supreme court. (Opp. at 3; Pet. at 4-5.)A. Respondent has not Identified any Unexhausted Claims
The exhaustion of available state judicial remedies is generally a prerequisite to a federal court's consideration of claims presented in habeas corpus proceedings. 28 U.S.C. § 2254(b); see Rose v. Lundy, 455 U.S. 509, 522 (1982);McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991); but see 28 U.S.C. § 2254(b)(2) (West Supp. 2005) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."). The exhaustion requirement is satisfied if Petitioner provides "the state courts with a `fair opportunity' to apply controlling legal principles to the facts bearing upon his [or her] constitutional claim."Anderson v. Harless, 459 U.S. 4, 6 (1982) (quoting Picard v. Connor, 404 U.S. 270, 276-77 (1971)).
The exhaustion requirement may be satisfied notwithstanding a failure to present a claim to the state supreme court, however, "if it is clear that (the habeas petitioner's) claims are now procedurally barred under (state) law." Gray v. Netherland, 518 U.S. 152, 161 (1996) (quoting Castille v. Peoples, 489 U.S. 346, 351 (1989)); Engle v. Isaac, 456 U.S. 107, 125-26 n. 28 (1982) (noting that the exhaustion requirement applies "only to remedies still available at the time of the federal petition.");Valerio v. Crawford, 306 F.3d 742, 770 (9th Cir. 2002) (same) (citing Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001) ("the district court correctly concluded that [petitioner's] claims were nonetheless exhausted because `a return to state court for exhaustion would be futile.'"). "A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer `available' to him." Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005) (quoting Coleman v. Thompson, 501 U.S. 722, 732 (1991)).
1) Claim One
Petitioner contends in claim one that he received ineffective assistance of appellate counsel. (Pet. at 6.) Specifically, he contends that the San Diego Superior Court concealed victim and witness statements by means of fraud and in conspiracy with the San Diego District Attorney in order to create a false impression that Petitioner was suffering from a delusional disorder, and in order to establish a false criminal history for Petitioner. (Id.) He claims that his appellate attorneys committed ineffective assistance by failing or refusing to recognize the fraud and the conspiracy, or by joining the conspiracy, and instead filing a fraudulent appellate brief in which counsel argued that Petitioner was suffering from a delusional disorder and was neither competent to stand trial nor competent to represent himself, for the primary purpose of concealing the 65 valid appellate issues Petitioner eventually submitted to the appellate court in a pro se brief which that court ignored. (Id.)
In his petition for review filed in the state supreme court on direct appeal of his conviction, Petitioner contended that his appellate counsel had filed a fraudulent appellate brief which falsely stated that Petitioner was suffering from a delusional disorder and was therefore not competent to stand trial and not competent to represent himself. (Lodgment No. 7 at 2.) Petitioner claimed that the false allegations that he suffered from a delusional disorder were a "smoke screen" used to conceal fraud and corruption by the trial judge, the district attorney and several trial witnesses. (Id.) He contended that although the appellate court apparently agreed with him that his original appellate attorney had committed fraud because the court replaced her with another appointed attorney, the new appellate attorney never contacted Petitioner and was secretly in concert with the former appellate attorney to conceal the 65 appellate issues Petitioner had identified in his pro se brief. (Id.) Petitioner requested the state supreme court accept for filing, in support of his claim of ineffective assistance of appellate counsel, the pro se brief which he had attempted to file in the appellate court but which had been returned to him without having been filed. (Id. at 2-3.) The California Supreme Court denied the petition for review on December 12, 2001, with an order which stated in full: "Petition for review DENIED." (Lodgment No. 8,People v. Mahdi, No. S101752, slip op. (Cal. Dec. 12, 2001).
Because the California Supreme Court did not articulate its rationale for denying Petitioner's claims, this Court applies the following rebuttable presumption: "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991). The appellate court did not address Petitioner's claim of ineffective assistance of appellate counsel, and in fact made no reference to his pro se appellate brief whatsoever. (See Lodgment No. 6, People v. Mahdi, No. D035514, slip op. (Cal.Ct.App. Sept. 17, 2001.) As indicated above, although Respondent has lodged a copy of the pro se brief which contains a stamp reflecting it was received by the appellate court, a review of the appellate court docket indicates that the brief was never filed, and Petitioner indicates that it was returned to him by the appellate court without having been filed.
Petitioner unquestionably presented claim one, as it is presented in the Petition here, to the state supreme court in the petition for review. Respondent admits that Petitioner attached to his petition for review a copy of his pro se appellate brief which in turn contained a claim that appellate counsel had filed a fraudulent brief, but contends that this claim was not properly presented to the state supreme court in the petition for review because the claim had not been timely presented to the appellate court. (MTD Mem. at 8.) Respondent contends that California Rule of Court Rule 28(c)(1) provides that when considering a petition for review, the California Supreme Court, as a matter of policy, will normally not consider an issue that a petitioner has failed to timely raise in the appellate court. (Id.) Respondent applies the same reasoning to the conspiracy aspect of claim one, and contends claim one is unexhausted. (Id.)
The Court recommends rejecting Respondents argument that claim one is unexhausted. Petitioner did in fact present the claim to the state supreme court in the petition for review. In People v. Randle, 35 Cal.4th 987 (2005), the California Supreme Court acknowledged that California Rule of Court Rule 28(c)(1) reflects a policy decision to ordinarily refrain from addressing issues which are not timely presented to the state appellate, but also noted that California Rule of Court Rule 29(b)(1) permits the court to decide any issue raised or fairly presented in the petition for review or answer thereto. Randle, 35 Cal.4th at 1001. The Randle court noted at least two exceptions to the policy underlying Rule 28(c)(1), where the issues are purely legal and when they involve matters of particular public importance. Id.
Petitioner not only presented claim one to the state supreme court in the petition for review, he argued that the appellate court had erred in failing to consider the claim, which had been raised in his pro se appellate brief. (Lodgment No. 7 at 5.) Petitioner has therefore carried his burden of demonstrating that he has provided the state supreme court with a "fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim." Anderson, 459 U.S. at 6; see also Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003) ("for the purposes of exhaustion, pro se petitions are held to a more lenient standard than counseled petitions.") (citing Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003) (en banc) ("(T)he complete exhaustion rule is not to trap the unwary pro se prisoner.") (quoting Slack v. McDaniel, 529 U.S. 473, 487 (2000))). Respondent has not demonstrated that Petitioner's pro se appellate brief was rejected by the appellate court as untimely, or that the discretionary nature of the state supreme court's review of Petitioner's claim renders the claim unexhausted, particularly in light of Petitioner's contention in the state supreme court that the appellate court had erred in refusing to consider the claims. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999) (holding that state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement). The Court therefore finds that claim one is exhausted.
2) Claim Four
In claim four, which Petitioner captions "abuse of discretion," he contends the superior court denied him his right to due process by not allowing him to have a handwriting expert examine and verify that it was his signature on the Union Bank letter which was used to support a finding at the probation revocation hearing that he had violated his probation by making a threat. (Pet. at 10.) Petitioner broadly alleges that he presented this claim to the state supreme court in the petition for review filed on direct appeal of the probation revocation. (Id. at 5.)
Respondent contends the "implied federal due process" aspect of claim four is unexhausted for the same reason Respondent contends claim one is not exhausted, because Petitioner's failure to timely present it to the court of appeal precluded the state supreme court from considering it in the petition for review. (MTD Mem. at 9.) Respondent has not lodged a copy of the petition for review which petitioner filed on direct appeal of the probation revocation judgment, and has therefore failed to counter Petitioner's allegation that claim four was presented in that petition for review. Rather, Respondent appears to concede that claim four was presented in that petition for review. See Rule 5 foll. 28 U.S.C. § 2254 (providing that in responding to the Petition, Respondent "must" attach parts of the state court record which respondent considers relevant to, inter alia, the determination whether any claim in the petition is barred by a failure to exhaust state remedies). The Court recommends rejecting Respondent's contention that claim four is unexhausted for the same reasons set forth above with respect to claim one.
B. Request for a More Definite Statement
Finally, Respondent requests that if the Court denies the Motion to Dismiss, it order Petitioner to "make the petition more certain" pursuant to Rule 4 of the Rules following 28 U.S.C. § 2254. (MTD Mem. at 10.) Rule 4 provides in part that: "If the petition is not dismissed, the judge must order the respondent to file an answer, motion, or other response within a fixed time, or to take other action the judge may order." Rule 4 foll. 28 U.S.C.A. § 2254 (West Supp. 2005). There does not appear to be any basis for Respondent's request. Although the Petition is not a model of clarity, neither is it too obtuse to permit a response. Therefore, if the District Judge assigned to this action adopts the findings in this Report and denies Respondent's Motion to Dismiss, the Court also recommends that Respondent's request for a more definite statement be denied and Respondent be directed to file a response to the Petition.
V. CONCLUSION AND RECOMMENDATION
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; (2) denying Respondent's Motion to Dismiss; and, (3) directing Respondent to file a response to the Petition.
IT IS ORDERED that no later than April 24, 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."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than May 8, 2006. The parties are advised that failure to file objections with the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).