Opinion
Civil No. 05cv0187 J (CAB).
March 7, 2006
Before the Court is Magistrate Judge James F. Stiven's Report and Recommendation ("RR") advising this Court to deny Respondent California Attorney General Bill Lockyer's ("Respondent's") Motion to Dismiss pro se Petitioner Michael Branch's ("Petitioner's") Petition for Writ of Habeas Corpus. [Doc. No. 19.] On January 31, 2005, Petitioner filed his Petition in this Court pursuant to 28 U.S.C. § 2254. [Doc. No. 1.] On April 18, 2005, Respondent filed a Motion to Dismiss the Petition on the grounds that the Petition contains both exhausted and unexhausted claims. [Doc. No. 7.] On July 19, 2005, Petitioner filed an Opposition to Respondent's Motion to Dismiss. [Doc. No. 16.] On September 13, 2005, the Magistrate Judge issued an RR advising this Court to deny Respondent's Motion to Dismiss. [Doc. No. 19.] The RR required that objections be submitted to the Court by October 7, 2005. ( See RR at 8.) On October 3, 2005, this Court accepted Respondent's Objections to the RR as timely. [Doc. No. 21.]
Background
Petitioner, a California prisoner, pled guilty to two counts of residential burglary and admitted to special allegations that those crimes constituted violent felonies that may be used to enhance future sentences under California Penal Code § 667.5(c)(21). ( See RR at 2.) On April 29, 2002, pursuant to the plea agreement, Petitioner was sentenced to two four-year prison terms, which were to run concurrently. ( See id.) Petitioner did not directly appeal his conviction. ( See id.)
Between January 2003 and July 2004, Petitioner filed five petitions for writ of habeas corpus in San Diego Superior Court, two petitions in the California Court of Appeal, and one petition in the California Supreme Court. ( See RR at 1.) In his petition to the California Supreme Court, filed November 7, 2003, Petitioner asserted two claims for relief. ( See Pet'r Cal. Sup. Ct. Pet. at 5.) First, Petitioner contended that the enhancement provisions to which he pled under California Penal Code § 667.5(c)(21) had been incorrectly applied, and the two counts on which he had been convicted were not actually violent felonies under the statute. ( See id.) Second, Petitioner asserted a claim of ineffective assistance of counsel. ( See id.) The California Supreme Court denied the petition without opinion. See In re Branch, S120343 (Cal. Aug. 25, 2004).
Petitioner listed the following allegations as part of his claim of ineffective assistance of counsel: (1) counsel failed to advise Petitioner of his right to appeal; (2) counsel "failed to pursue the question that the additional impose [sic] statute is a default judgment"; (3) counsel failed to advise Petitioner of "all the alternatives and the possible consequences of each"; (4) counsel failed to advise Petitioner of "immunity and such privileges"; and (5) counsel failed to pursue circumstances in mitigation and aggravation. (Pet'r Cal. Sup. Ct. Pet. at 5; see RR at 3.)
In his Petition before this Court, Petitioner raises three claims for relief. ( See Pet'r. Fed. Pet. at 6-8.) First, Petitioner seeks relief on the ground of "arbitrary enforcement of state laws," which he alleges to be in violation of the Fifth and Fourteenth Amendments to the United States Constitution. ( Id.) Second, Petitioner claims that he did not knowingly, voluntarily, and intelligently admit to the special violent felony allegations as part of his plea agreement, presumably in violation of the Fifth and Fourteenth Amendments. ( See id.) Third, Petitioner seeks relief for the ineffective assistance of counsel he claims he received, presumably in violation of his Sixth and Fourteenth Amendment rights. ( See id.)
Petitioner titled his second ground for relief as an "involuntary admission to plea bargain." (Pet'r Fed. Pet. at 7; see RR at 1.)
Petitioner does not specify the constitutional grounds on which he bases his second and third claims.
In his Motion to Dismiss, Respondent argues that the Petition is "mixed" in that it contains both exhausted and unexhausted claims. ( See Resp't. P. A. for Mot. Dismiss at 1-2.) Specifically, while Respondent concedes that Petitioner's first claim for relief is exhausted, he contends that Petitioner's second and third claims for relief are unexhausted. ( See id.) In his RR, the Magistrate Judge recommended that this Court deny Respondent's Motion to Dismiss because the futility doctrine excused from the exhaustion requirement the claims that Petitioner failed to exhaust. ( See RR at 8.) Thereafter, Respondent filed his Objections to the RR, wherein he argued that the futility doctrine does not apply to the unexhausted claims, and therefore the Petition should be dismissed. ( See Resp't Obj. to RR at 1-2.)
Legal Standard
The duties of the district court in connection with a magistrate judge's RR are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1) (2005). The district court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) (2005); see United States v. Raddatz, 447 U.S. 667, 676 (1980).
Before a federal court may grant a petitioner habeas relief, the petitioner is required to exhaust all available state court remedies with respect to all claims contained in the petition. See 28 U.S.C. § 2254(b) (1996); Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003). Furthermore, exhaustion requires that the petitioner give the highest state court a "fair opportunity" to address each claim before presenting the claims in a federal habeas petition. see Kelly, 315 F.3d at 1066-69; see also Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (finding that to properly exhaust a habeas claim, "a petitioner must present his claim to the state supreme court"). Moreover, the petitioner "must describe in the state proceedings both the operative facts and the federal legal theory on which his claim is based `so that the [court has] a "fair opportunity" to apply controlling legal principles to the facts bearing upon his constitutional claim.'" Kelly, 315 F.3d at 1066 (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982)).
Once the state's highest court considers the habeas petition, that court's denial of the petition without opinion or citation is sufficient to satisfy the exhaustion requirement. See Harris v. Superior Court, 500 F.2d 1124, 1128-29 (9th Cir. 1974); see also Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir. 1992) (finding that the "California Supreme Court's summary order denying [the] petition was a denial on the merits"). Upon satisfaction of the exhaustion requirement, a federal court may consider the merits of a petitioner's habeas claims. See 28 U.S.C. § 2254(b) (1996). However, where a federal habeas petition contains both exhausted and unexhausted claims, the court must dismiss the petition without prejudice. See id.; see Rose v. Lundy, 455 U.S. 509, 510 (1982).
Discussion
Because Respondent concedes, in line with the RR, that Petitioner's first claim for relief was properly exhausted in state court, this Court adopts that view and only considers whether Petitioner's second and third claims for relief were properly exhausted. ( See Resp't P. A. Mot. Dismiss at 1-2.) For the reasons set forth below, this Court FINDS that Petitioner exhausted the three allegations comprising his third claim, as they were previously asserted in his California Supreme Court petition. However, this Court ALSO FINDS that Petitioner's second claim, and five newly asserted allegations comprising Petitioner's third claim, remain unexhausted. Accordingly, and for the reasons stated below, the Court FINDS that the Petition contains both exhausted and unexhausted claims, and DISMISSES the Petition without prejudice.
I. Petitioner's Second Claim for Relief
In his federal habeas petition, Petitioner cites the basis of his second ground for relief as an "involuntary admission to plea bargain." (Pet'r Fed. Pet. at 7.) This Court agrees with the Magistrate Judge in construing this language as a claim that Petitioner did not knowingly, voluntarily, and intelligently admit to the special violent felony allegations as part of his plea agreement, as required under the Fifth and Fourteenth Amendments. ( See RR at 1-2.) This interpretation is bolstered by Petitioner's contention that he "unsophisticatedly, ignorantly, and [un]intentionally stipulated" to the plea bargain. ( Id.) Although Respondent does not contest this interpretation of Petitioner's second claim, Respondent does object to the RR's conclusion that this claim was previously exhausted in state court. ( See Resp't Obj. to RR at 1.)
The Court has a duty to construe pro se motions and pleadings liberally. See, e.g., Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003).
In the RR, the Magistrate Judge advances three reasons in support of his determination that Petitioner's second ground for relief was exhausted in state court. ( See RR at 1-2.) First, he finds that Petitioner previously asserted this claim in various habeas petitions filed in the lower state courts. ( See id.) Second, he finds that Petitioner asserted the same claim in his petition to the California Supreme Court in the context of an ineffective assistance of counsel claim. ( See id.) Finally, he reasons, "the procedural bars now faced by Petitioner in the state courts would render any further attempts at exhaustion futile." ( Id.) This Court addresses each of these justifications in turn.
A. Petitioner's Assertion of Claims in State Court Proceedings Other than the California Supreme Court Does Not Satisfy the Exhaustion Requirement
To satisfy the exhaustion requirement, Petitioner must have presented his second claim in a habeas petition to the California Supreme Court. See Gatlin, 189 F.3d at 888; see also Kelly, 315 F.3d at 1069 (finding that a "thorough description of the operative facts before the highest state court" is necessary to satisfy the exhaustion requirement). Accordingly, Petitioner's presentation of his second claim in a habeas petition to the San Diego Superior Court or California Court of Appeal is in itself insufficient to exhaust that claim. Therefore, only those claims that Petitioner asserted in his California Supreme Court petition will satisfy the exhaustion requirement.
B. The Claim of Ineffective Assistance of Counsel Petitioner Asserted in His California Supreme Court Petition Does Not Exhaust the Involuntary Admission Claim Petitioner Asserted in His Federal Petition
The RR concludes that the ineffective assistance of counsel claim that Petitioner asserted in his California Supreme Court petition "fairly presented" his claim that he did not knowingly, voluntarily, and intelligently admit to the special violent felony allegations. ( See RR at 6.) However, the U.S. Court of Appeals for the Ninth Circuit has stated that "petitioners must plead their claims with considerable specificity . . . to satisfy the exhaustion requirement." Rose v. Palmateer, 395 F.3d 1108, 1111 (9th Cir. 2005). Additionally, a petitioner is required to "articulate the substance of an alleged violation with some particularity" ( id.), "in order to give the California Supreme Court a `full and fair opportunity' to act upon [the claim], rather than hope that the court would infer [the] claim." Kelly, 315 F.3d at 1068.
Here, Petitioner's general claim of ineffective assistance of counsel does not provide the requisite amount of specificity and particularity to have "fairly presented" Petitioner's involuntary admission claim to the California Supreme Court. Rose, 395 F.3d at 1111; see also Kelly, 315 F.3d at 1068 n. 2 (holding that a claim of ineffective assistance of counsel based on counsel's failure to object failed to exhaust a related ineffective assistance claim that was premised on counsel's failure to file a motion). Specifically, Petitioner's ineffective assistance of counsel claim implicates a different constitutional violation than does his involuntary admission claim. ( See RR at 1-2.) Furthermore, the operative facts on which Petitioner's ineffective assistance of counsel claim is based differ significantly from the facts underlying Petitioner's involuntary admission claim. ( See Pet'r Fed. Pet. at 7-8.) Accordingly, this Court FINDS that Petitioner's ineffective assistance of counsel claim failed to exhaust Petitioner's involuntary admission claim.
Petitioner's claim of ineffective assistance of counsel implicates the Fifth and Fourteenth Amendments, whereas Petitioner's involuntary admission claim implicates the Sixth and Fourteenth Amendments. ( See RR at 1-2.)
The facts Petitioner describes in support of his involuntary admission claim include his lack of education, "comprehension disabilities from drug relations," and his unfamiliarity with the legal system. (Pet'r Fed. Pet. at 7.) In support of his ineffective assistance of counsel claim, Petitioner alleges a number of deficiencies in his counsel's representation of him, including his counsel's "failure to bring [Petitioner] present during" several phases of trial, and his counsel's failure to properly advise Petitioner in a number of instances. ( Id. at 8.) Petitioner did describe his drug addition in support of his ineffective assistance of counsel claim, but he offered this fact as an example of a mitigating circumstance that his counsel failed to raise. ( See id.)
C. The Magistrate Judge Misapplied the Futility Doctrine By Impermissibly Excusing Petitioner's Second Claim from the Exhaustion Requirement
Despite this Court's determination that Petitioner failed to exhaust his second claim, this Court examines whether the second claim warrants exception from the exhaustion requirement. The RR concludes that the "procedural bars now faced by Petitioner in state courts" trigger application of the futility doctrine, which excuses qualifying unexhausted claims from the exhaustion requirement. (RR at 6.) However, this Court FINDS that the Magistrate Judge misapplied the futility doctrine in the RR where he impermissibly excused Petitioner's second claim for relief from the exhaustion requirement.
Although neither the U.S. Supreme Court nor the Ninth Circuit has defined the exact contours of the futility doctrine, the Ninth Circuit has been most willing to apply the doctrine in those cases where "the highest state court has recently addressed the issue raised in the petition and resolved it adversely to the petitioner." Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir. 1981). Furthermore, the Ninth Circuit has indicated that "[t]he case for the futility doctrine is most compelling where the question is one of pure law, and the circumstances of the individual case are largely irrelevant." Noltie v. Peterson, 9 F.3d 802, 806 (9th Cir. 1993).
In light of the Ninth Circuit's treatment of the futility doctrine, the existence of procedural bars that may preclude state court review of Petitioner's second claim do not warrant application of the exception. Here, Petitioner's specific claim has not been recently addressed by the California Supreme Court and decided adversely to him, nor does Petitioner present a question of pure law. Were the futility doctrine to apply simply whenever procedural bars preclude state court consideration of a habeas claim, the exception would likely swallow the rule requiring state court exhaustion; a party would be able to "avoid the exhaustion requirement by procedurally defaulting [its] federal claims in state court" and thereafter circumvent the state procedural bars by asserting the futility doctrine exception. Coleman v. Thompson, 501 U.S. 722, 732 (1991). Accordingly, this Court HOLDS that Petitioner has failed to properly exhaust his second claim in state court.
II. Petitioner's Third Claim for Relief
A. Petitioner Previously Exhausted Three Allegations Comprising His Claim of Ineffective Assistance of Counsel
In his third claim for relief, ineffective assistance of counsel, Petitioner alleges a number of deficiencies in counsel's representation of him. ( See Pet'r Fed. Pet. at 8.) Of the eight allegations comprising Petitioner's ineffective assistance of counsel claim, only three were previously discussed in Petitioner's California Supreme Court petition. ( See Pet'r Cal. Sup. Ct. Pet. at 5.) These previously discussed allegations include counsel's (1) failure to raise mitigating circumstances, (2) failure to explain the potential consequences of Petitioner's admission to the special violent felony allegations as part of his plea agreement, and (3) failure to advise Petitioner of his right to appeal. ( See RR at 7-8; Pet'r Cal. Sup. Ct. Pet. at 5.) Because Petitioner asserted these three allegations in his petition to the California Supreme Court, which was denied without opinion, this Court FINDS these allegations exhausted.
While the federal petition contains only seven enumerated allegations of ineffective assistance of counsel, the eighth and final allegation, that counsel failed to advise Petitioner of his right to appeal, is incorporated by the word, "FURTHERMORE." (Pet'r Fed. Pet. at 8.)
B. Petitioner Did Not Previously Exhaust Five Allegations Comprising His Claim of Ineffective Assistance of Counsel
1. The Futility Doctrine Does Not Excuse the Five New Allegations Petitioner Asserts from the Exhaustion Requirement
Petitioner lists five allegations in the third claim of his Petition that he did not previously raise in his petition to the California Supreme Court. ( See Pet'r Fed. Pet. at 8.) Despite Petitioner's failure to assert these allegations in his California Supreme Court petition, in the RR, the Magistrate Judge found them excused from the exhaustion requirement through application of the futility doctrine. ( See RR at 8.) This Court FINDS that the Magistrate Judge again misapplied the futility doctrine by impermissibly excepting Petitioner's newly asserted allegations from the exhaustion requirement.
Specifically, those allegations comprising Petitioner's ineffective assistance of counsel claim that were not presented in his California Supreme Court petition, are as follows: (1) counsel "failed to `bring [Petitioner] present during concession with Judge'"; (2) counsel "failed to `bring [Petitioner] present during initial preliminary hearing'"; (3) counsel "failed to `bring [Petitioner] present during the admission of evidence taken before trial'"; (4) counsel "failed to `bring [[P]etitioner] present during sentence imposition'"; and (5) counsel "failed to invoke `Uniform operation of state laws.'" (RR at 7.)
The RR provides two justifications for application of the futility doctrine to Petitioner's newly asserted allegations. ( See RR at 8.) First, the RR declares that "procedural bars render any further state court ineffective assistance of counsel claims futile." ( Id.) Second, the RR reasons that "[i]n light of repeated statements from the Superior Court and the Court of Appeals [sic] that they would not entertain further `piecemeal' claims by Petitioner, and because of the Superior Court's holding in its order on his fourth petition that his claims were time-barred, it is apparent that Petitioner's chances of having his claims decided in the state courts on the merits are futile." ( Id.) However, both of the RR's justifications fail to support application of the futility doctrine.
For the same reasons as discussed supra Section I, the existence of procedural bars that may preclude state court review of Petitioner's newly asserted claims do not trigger application of the futility doctrine. Likewise, the RR's assessment that "Petitioner's chances of having his claims decided in the state courts on the merits are futile" also fails to justify application of the futility doctrine. (RR at 8.) The Supreme Court observed that a party "may not bypass the state courts simply because he thinks they will be unsympathetic to his claim. Even a state court that has previously rejected a constitutional argument, may decide upon reflection, that the contention is valid." Engle v. Isaac, 456 U.S. 107, 130 (1982). Therefore, the Magistrate Judge's concern that Petitioner's "chances" of state court review are unfavorable, fails to qualify Petitioner's newly asserted allegations for exception from the exhaustion requirement.
It is worth noting that both the Supreme Court and the Ninth Circuit have generally disfavored the futility doctrine as an exception to the exhaustion requirement. See Lagrand v. Stewart, 173 F.3d 1144, 1147 (9th Cir. 1999); Noltie, 9 F.3d at 805.
2. Petitioner's Previous Ineffective Assistance of Counsel Claim Is Insufficient to Exhaust the New Allegations Petitioner Asserts
Despite the unavailability of the futility doctrine, the question remains whether Petitioner's general assertion of an ineffective assistance of counsel claim in his California Supreme Court petition was sufficient to exhaust those allegations Petitioner raised for the first time in his federal petition. This Court FINDS that Petitioner's new allegations remain unexhausted notwithstanding his general assertion of an ineffective assistance of counsel claim in his California Supreme Court petition.
The RR fails to specifically address this question.
As previously noted, to properly exhaust a claim for relief in state court, a petitioner is required to "articulate the substance of an alleged violation with some particularity." Rose, 395 F.3d at 1111. In discussing this requirement in Rose, 395 F.3d at 1111 (discussing Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003)), the Ninth Circuit has held that "although the petitioner had exhausted a claim of ineffective assistance based on counsel's failure to object to several instances of alleged prosecutorial misconduct, the petitioner [had] not exhausted a related ineffective assistance claim that was premised on counsel's failure to file a motion to recuse the prosecutor based on that same conduct." The Ninth Circuit reasoned that "it was incumbent upon Petitioner to set forth the alleged failure to file a motion to recuse as an independent constitutional claim in order to give the California Supreme Court a `full and fair opportunity' to act upon it, rather than hope that the court would infer his claim." Kelly, 315 F.3d at 1068.
In light of the Ninth Circuit's analysis, it is not enough that the grounds underlying the allegations comprising Petitioner's third claim are related. Kelly, 315 F.3d at 1068. Rather, Petitioner should have included the new allegations in his California Supreme Court petition as independent constitutional claims in order to give "the California Supreme Court a `full and fair opportunity' to act upon [them]." Id. For these reasons, the Court FINDS that the general claim of ineffective assistance of counsel Petitioner raised before the California Supreme Court was insufficient to exhaust related allegations Petitioner raised for the first time in his Petition to this Court.
III. Petitioner Must Demonstrate Good Cause for Failing to Exhaust His Second Claim and the Five New Allegations Comprising His Third Claim for Relief
Where a federal habeas petition is "mixed," containing both exhausted and unexhausted claims, the district court must dismiss the petition without prejudice. See 28 U.S.C. § 2254(b) (1996); Rose v. Lundy, 455 U.S. 509, 510 (1982). In light of the one-year limitation period, imposed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), within which a petitioner must file a federal petition ( see 28 U.S.C. § 2244(d)), "petitioners who come to federal court with `mixed' petitions run the risk of forever losing their opportunity for any federal review of their exhausted claims." Rhines v. Weber, 125 S.Ct. 1528, 1533 (2005). To prevent AEDPA's one-year statute of limitations from barring federal review, a district court may "stay the petition and hold it in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims." Id. at 1534. "Once the petitioner exhausts his state remedies, the district court will lift the stay and allow the petitioner to proceed in federal court." Id.
28 U.S.C. § 2244(d)(1) states in relevant part: "A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1) (1996).
Recently, the Supreme Court declared that the stay-and-abeyance procedure is available only in limited circumstances. See Rhines, 125 S.Ct. at 1535. Specifically, the Supreme Court held that "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. However, even where a petitioner demonstrates good cause, granting a stay would be "improper when the unexhausted claims are `plainly meritless' or where the petitioner has engaged in `abusive litigation tactics or intentional delay.'" Jackson v. Roe, 425 F.3d 654 (9th Cir. 2005) (quoting Rhines, 125 S.Ct. at 1535). Otherwise, "[w]hen these factors are absent . . . and the petitioner has good cause for the failure to exhaust . . . `it likely would be an abuse of discretion for a district court to deny a stay.'" Id.
What constitutes "good cause" sufficient to permit application of the stay-and-abeyance procedure has not been precisely defined. However, the Ninth Circuit has held that a petitioner need not demonstrate "extraordinary circumstances" to qualify for a stay. Jackson, 425 F.3d at 661. Moreover, Justice Stevens, in a concurring opinion in Rhines, stated that the good cause requirement "is not intended to impose the sort of strict and inflexible requirement that would `trap the unwary pro se prisoner.'" 125 S.Ct. at 1536 (quoting Rose, 455 U.S. at 520). Finally, the United States District Court for the District of Nevada stated:
[T]he good cause standard . . . requires the petitioner to show that he was prevented from raising the claim, either by his own ignorance or confusion about the law or the status of his case, or by circumstances over which he had little or no control, such as the actions of counsel either in contravention of the petitioner's clearly expressed desire to raise the claim or when petitioner had no knowledge of the claim's existence.Riner v. Crawford, No. 3:99-CV-0258-ECR-RAM, 2006 WL 456774, at *3 (D. Nev. Feb. 3, 2006). In light of the good cause requirement articulated by the Supreme Court in Rhines, the Court ORDERS Petitioner to show good cause for his failure to first present the unexhausted claims in a habeas petition to the California Supreme Court.
Conclusion
For the reasons set forth above, this Court FINDS that Petitioner exhausted the three allegations comprising his third claim that he previously asserted in his California Supreme Court petition. Moreover, this Court FINDS that Petitioner's second claim and the five new allegations comprising Petitioner's third claim remain unexhausted. Accordingly, the Court ADOPTS the RR in part, REJECTS the RR in part, and DENIES Respondent's Motion to Dismiss.
Additionally, the Court DISMISSES without prejudice Petitioner's unexhausted claims, and ORDERS Petitioner to show good cause for his failure to first present his unexhausted claims in a habeas petition to the California Supreme Court. Accordingly, the Court ORDERS briefing as follows:
1) Petitioner shall have until April 7, 2006, to show good cause for why he failed to first present his unexhausted claims to the California Supreme Court;
2) Respondent shall have until April 28, 2006, to file an opposition or statement of non-opposition; and
3) If Petitioner chooses to file a reply brief, he shall file it no later than May 15, 2006.
The Court STAYS the proceeding, pending its determination of whether Petitioner demonstrates good cause.
IT IS SO ORDERED.