Opinion
2:21-cv-00960-TL-TLF
03-17-2023
JAGJIT SINGH, Petitioner, v. JEFFREY UTTECHT, Respondent.
Noted for April 7, 2023
REPORT AND RECOMMENDATION
THERESA L. FRICKE, UNITED STATES MAGISTRATE JUDGE.
This matter comes before the Court on petitioner's petition for writ of habeas corpus under 28 U.S.C. § 2254, challenging the legality of his conviction for the crimes of domestic violence assault in the first and second degrees. The petition presents one ground for relief: that plaintiff's Sixth Amendment confrontation rights were violated by the introduction of hearsay testimony. Dkt. 4 at 5.
In addition, petitioner has filed a motion for leave to file an “ancillary brief,” which the Court construes as a motion to amend the petition to add a claim for ineffective assistance of counsel. Dkts. 22, 24.
For the reasons set forth below, the undersigned recommends that the petition be DISMISSED without prejudice because the claim raised is unexhausted and petitioner's request to amend be DENIED as futile because the proposed additional ground is also unexhausted. The undersigned further recommends that issuance of the certificate of appealability (COA) be DENIED.
BACKGROUND
A. Factual Background
The Washington Court of Appeals summarized the facts relevant to this matter as follows:
The State charged Singh with one count of domestic violence assault in the first degree (count I), two counts of domestic violence assault in the second degree (counts II and III), and one count of rape in the third degree (count IV) for acts committed against his wife. Count II also charged a domestic violence “within sight or sound of the victim's or the offender's minor child” aggravating factor. Each count also charged a domestic violence “ongoing pattern of ... abuse” aggravating factor.
During Singh's bench trial, the State called Deputy Sherriff Nathaniel Obregon and elicited facts regarding that which Singh's family had reported to the police:
[Prosecutor:] You talked to the son at this interview, did you not?
[Obregon:] Very briefly, yes.
[Prosecutor:] And did you ask him any questions about what you were told was happening to him by his father?
[Obregon:] I did. I asked him-as in my notes, if-
[Defense Counsel]: I object. I guess I can't object to the question.
[Obregon]: -if his father hurt him when he pulled his arm back behind his back.
[Defense Counsel]: I would object.
The Court: I'm going to overrule the objection.
[Prosecutor]: Go ahead.
[Obregon]: I asked him if it hurt him when his father pulled his arm behind his back.
[Prosecutor:] And did you get an answer from him?
[Obregon]: I did. He-
[Defense Counsel]: I object to any response.
The Court: Overruled. He may answer the question.
[Obregon]: He said hurt.
Singh was subsequently convicted of the crimes charged in counts I and II, and the court also concluded that both counts involved domestic violence that was a part of an ongoing pattern of abuse. At sentencing, Singh was assigned an offender score of 4 for each offense, thus setting a standard range sentence of 129 to 171 months for his conviction on count I and 15
to 20 months for his conviction on count II. Singh was sentenced at the high end of the standard range for both counts, with the sentences to run concurrently.Dkt. 11-1 at 16 (Ex. 2).
B. State Court Procedural History
The trial court entered its judgment and sentence on September 28, 2018. Dkt. 11-1 at 2-10 (Ex. 1). Petitioner challenged his conviction and his sentence in a direct appeal, asserting that the trial court erred as a matter of state evidentiary law in admitting hearsay testimony, and that his offender score had been miscalculated, leading to an excessively lengthy sentence. Dkt 11-1 at 19-64 (Ex. 3). On March 9, 2020 Division One of the Washington Court of Appeals (the “state court of appeals”) issued an unpublished opinion affirming the conviction but remanding for resentencing because the trial court had erred in calculating petitioner's offender score, resulting in an excessive sentence. Dkt. 11-1 at 13-17 (Ex. 2).
Petitioner sought discretionary review from the Washington Supreme Court (“state supreme court”), alleging for the first time that the admission of hearsay evidence violated his Sixth Amendment right to confront witnesses. Dkt. 11-1 at 188-209 (Ex. 8). The state supreme court denied review. Dkt. 11-1 at 212 (Ex. 9). Petitioner did not file a Personal Restraint Petition or other post-conviction collateral attack on his conviction. Dkt. 4 at 3.
C. Federal Habeas Petition
On July 19, 2021, petitioner filed his federal habeas petition, asserting the trial court violated his Sixth Amendment confrontation rights by admitting hearsay testimony. Dkt. 4. Respondent contends that petitioner has failed to exhaust his ground for relief. Dkt. 10. After receiving multiple extensions, petitioner filed a reply on December 23, 2022, together with a motion for leave to file an “ancillary brief” alleging, for the first time, that petitioner's trial counsel was ineffective. Dkts. 21, 22.
The Court construed plaintiff's request as a motion to amend his petition and renoted the petition to be considered at the same time as the motion. Dkt. 24. Respondent filed a response, opposing the motion to amend. Dkt. 25. Petitioner did not file a reply.
DISCUSSION
Respondent contends petitioner failed to exhaust his state remedies and thus his petition should be dismissed. Dkt. 10.
Respondent also contends, in the alternative, that petitioner's claim fails on the merits. Dkt. 10 at 9-10. Because the Court finds the claim is unexhausted, the Court does not reach the merits.
A. Legal Standard
“[A] state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus.” Picard v. Connor, 404 U.S. 270, 275 (1971). Petitioner's claims will be considered exhausted only after “the state courts [have been afforded] a meaningful opportunity to consider allegations of legal error without interference from the federal judiciary.” Vasquez v. Hillery, 474 U.S. 254, 257 (1986). “[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
A federal habeas corpus petitioner must provide the state courts with a fair opportunity to correct alleged violations of federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985) (petitioner “fairly presented” the claim to the state Supreme Court even though the state court did not reach the argument on the merits). A federal claim is “fairly and fully” presented to the state courts if the claim is presented “(1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations omitted).
It is not enough if all the facts necessary to support the federal claim were before the state courts or if a somewhat similar state law claim was made. Duncan, 513 U.S. at 365-66 (citing Picard, 404 U.S. at 275; Anderson v. Harless, 459 U.S. 4 (1982)). Petitioner must include reference to a specific federal constitutional guarantee, as well as a statement of the facts entitling petitioner to relief. Gray v. Netherland, 518 U.S. 152, 162-163 (1996); Insyxiengmay, 403 F.3d at 668. To put state courts on notice of a federal claim, “the petitioner must have either referenced specific provisions of the federal constitution or cited to federal or state cases involving the legal standard for a federal constitutional violation.” Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). Petitioner bears the burden of proving he has exhausted available state remedies, and retains the burden to prove all facts relevant to the exhaustion requirement. See Rose v. Lundy, 455 U.S. 509, 520 (1982); 28 U.S.C. § 2254(b)(1)(A).
B. Analysis
Petitioner raised his federal claims for the first and only time when he sought discretionary review by the state supreme court. However, because petitioner did not fairly present his ground as a federal claim to the state court of appeals, he did not fairly present or exhaust his federal claim by virtue of raising it for the first and only time before the state supreme court. Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004). In order for petitioner to exhaust a claim, the claim must have been raised throughout the entire state appeals process, not just at the end before the state's highest court. See Ortberg v. Moody, 961 F.2d 135, 138 (9th Cir. 1992) (“The remainder of the petition was properly dismissed because five of the remaining six claims either were not raised on every level of direct review, or were raised for the first time on habeas. As stated above, only claim number twelve ... was raised on every level of direct review.”).
Here, petitioner expressly acknowledged in his appeal to the state court of appeals that he was not presenting a federal constitutional claim. Dkt. 11-1 at 50 (Ex. 3). Petitioner asserted the trial court erred by admitting a hearsay statement of petitioner's stepson, but specifically designated the error as a violation of the state rules of evidence and “not . . . of constitutional magnitude.” Id. Petitioner's brief cites only state evidentiary law and contains no argument or citation to the Sixth Amendment or federal law. Id. at 45-50. Similarly, the state court of appeals' discussion of the issue is based solely upon state law. Dkt. 11-1 at 15-16 (Ex. 2). Thus, petitioner did not bring his Sixth Amendment confrontation clause issue before the state court of appeals.
Petitioner filed a Statement of Additional Grounds in his appeal to the state court of appeals. Dkt.11-1 at 97-147 (Ex. 5-original filing) and 151-152 (Ex. 6-translation). None of those grounds raises the Sixth Amendment issue petitioner seeks to pursue in this matter.
Instead, petitioner raised his Sixth Amendment claim for the first and only time in his petition for discretionary review by the state supreme court. Dkt. 11-1 at 192-209 (Ex. 8). This is not sufficient to qualify as a fair presentation of the claim in the state courts. Casey, 386 F.3d at 917.
Petitioner's claim is unexhausted because he presented his current federal claim only when seeking review by the state supreme court and did not present it to the state court of appeals. Accordingly, petitioner did not properly exhaust his state court remedies.
C. Dismissal Without Prejudice
If a state remedy remains available, dismissal of an unexhausted habeas petition should be without prejudice, and petitioner would need to return to the state level to exhaust his claims. See Johnson v. Lewis, 929 F.2d 460, 464 (9th Cir. 1991). “The appropriate time to assess whether a prisoner has exhausted his state remedies is when the federal habeas petition is filed, not when it comes on for a hearing in the district court or court of appeals.” Brown v. Maass, 11 F.3d 914, 915 (9th Cir. 1993).
Here, at the time petitioner filed his federal habeas petition, he had an available state remedy. Washington State imposes a one-year statute of limitations on the filing of a personal restraint petition or other post-conviction challenge. RCW § 10.73.090. Here, the mandate issued, and the state court of appeals' decision became final on April 12, 2021. Petitioner filed his federal habeas petition only three months later, on July 19, 2021. Dkt. 1. At that time, the deadline for filing a personal restraint petition had not expired.
Moreover, the state court of appeals remanded petitioner's case for resentencing after it held petitioner's offender score was improperly calculated and resulted in an excessive sentence. Dkt. 11-1 at 17 (Ex. 2). As of the date of Respondent's Answer (which was filed December 17, 2021), the resentencing had not yet occurred. Dkt. 11-1 at 219. However, the Court's review of the current docket in petitioner's underlying criminal matter indicates that the trial court resentenced petitioner and entered a new judgment and sentence on July 8, 2022. State v. Singh, King County No. 17-1-05 455 docket (available at Case Data | KC-Script Portal (kingcounty.gov)), at docket entry 82. Petitioner filed an appeal of the new judgment and sentence on August 8, 2022, which remains pending. Id. at docket entry 92. Therefore, petitioner appears to have an available state remedy with respect to his new judgment and sentence.
The Court may take judicial notice of documents on file in federal or state courts. Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012).
Petitioner failed to properly exhaust his state remedies and, at the time of filing his petition, state remedies remained available to him; moreover, it appears such remedies may be available to him with respect to the new judgment and sentence entered by the trial court. Accordingly, the undersigned recommends the petition be dismissed without prejudice.
PETITIONER'S MOTION TO AMEND
Petitioner has filed a motion for leave to file an “ancillary brief,” which the Court construes as a motion to amend the petition to add a claim for ineffective assistance of counsel. Dkts. 22, 24. Respondent opposes the motion, contending that amendment would be futile because the claim petitioner seeks to add would be subject to dismissal for failure to exhaust. Dkt. 25 at 2-3.
Because petitioner seeks to amend his petition more than 21 days after the filing of a responsive pleading, he must receive leave of court to do so. Fed.R.Civ.P. 15(a)(2). Leave should be freely granted “where justice so requires.” Id. “In determining whether leave to amend is appropriate, the district court considers ‘the presence of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or futility.'” Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting Griggs v. Pace Am. Group, Inc.. 170 F.3d 877, 880 (9th Cir. 1999)).
Here, the record shows that petitioner failed to exhaust state remedies for his ineffective assistance of counsel claim. Petitioner's direct appeal to the state court of appeals makes no mention of ineffective assistance-and cites no federal law. See Dkt 11-1 at 19-64 (Ex. 3). Petitioner likewise made no ineffective assistance claim in his petition for review by the state supreme court. Dkt. 11-1 at 188-209 (Ex. 8). Petitioner has not filed any collateral attacks on his conviction. Dkt. 4 at 3.
Because the claim is unexhausted, any amendment to add it to the petition in this matter would be futile. See Caswell v. Calderon, 363 F.3d 832, 837 (9th Cir. 2004) (where the claim petitioner sought to add was unexhausted, amendment was futile and district court did not abuse its discretion in denying leave to amend.). The Court therefore recommends that petitioner's motion to amend be DENIED.
EVIDENTIARY HEARING
Petitioner has not requested an evidentiary hearing. The decision to hold an evidentiary hearing is committed to the Court's discretion. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “[A] federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Id. at 474. In determining whether relief is available under 28 U.S.C. § 2254(d)(1), the Court's review is limited to the record before the state court. Cullen v. Pinholster, 563 U.S. 170 (2011). A hearing is not required if the allegations would not entitle Petitioner to relief under §2254(d). Landrigan, 550 U.S. at 474. “It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Id.; see Pinholster, 563 U.S. 170. The Court finds it is not necessary to hold an evidentiary hearing in this case because Petitioner's claim may be resolved on the existing state court record.
CERTIFICATE OF APPEALABILITY
If the Court adopts the undersigned's Report and Recommendation, it must determine whether a Certificate of Appealability (“COA”) should issue. Rule 11(a), Rules Governing Section 2254 Cases in the United States District Courts (“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”). A COA may be issued only where a petitioner has made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)-(3). A petitioner satisfies this standard “by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
The undersigned recommends that petitioner not be issued a COA. No jurist of reason could disagree with the above evaluation of petitioner's constitutional claims or conclude that the issues presented deserve encouragement to proceed further. Petitioner should address whether a COA should issue in his written objections, if any, to this Report and Recommendation.
CONCLUSION
Based on the foregoing discussion, the undersigned recommends that the Court dismiss the petition for writ of habeas corpus without prejudice as unexhausted, and DENY petitioner's request to amend his petition because amendment would be futile in light of petitioner's failure to exhaust state remedies regarding his proposed ineffective assistance of counsel claim.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the Clerk is directed to set the matter for consideration on April 7, 2023, as noted in the caption.