RENO ON H.C.Petitioner’s Second Supplement to the TraverseCal.April 27, 2012SUPREME COURTCOPY == COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA CAPITAL CASE California Supreme Court Case No. $124660 Los Angeles County Superior Court Case No. A445665 Direct Appeal California Supreme Court Case No. S004770 On Habeas Corpus. S m e e N e e N e e e e e e e e e e PETITIONER’S SECOND SUPPLEMENT TO THE TRAVERSE TO RESPONDENT’S RETURN TO THE PETITION FOR WRIT OF HABEAS CORPUS AND SUPPORTING EXHIBIT JAMES S.THOMSON California SBN 79658 Attorney & Counselor at LawSUPREME GOURT FILED 819 Delaware Street Berkeley, California 94710 Telephone:.(510) 525-9123 iAPR |? 20le _ cjerRETER GIANNINI crederick K. Onirien oe" California SBN 61257 ea Gayley Avenue, #1000. epu Los Angeles, CA 90024. Telephone: (310) 447-9988 Attorneys for Petitioner RENO IN THE SUPREME COURTOF THE STATE OF CALIFORNIA In re RENO, On Habeas Corpus. CAPITAL CASE California Supreme Court Case No. $124660 Los Angeles County Superior Court Case No. A445665 Direct Appeal California Supreme Court Case No. S004770 PETITIONER’S SECOND SUPPLEMENT TO THE TRAVERSE TO RESPONDENT?’S RETURN TO THE PETITION FOR WRIT OF HABEAS CORPUS AND SUPPORTING EXHIBIT JAMES S. THOMSON California SBN 79658 Attorney & Counselor at Law 819 Delaware Street Berkeley, California 94710 Telephone: (510) 525-9123 PETER GIANNINI California SBN 61257 1015 Gayley Avenue, #1000 Los Angeles, CA 90024. Telephone: (310) 447-9988 Attorneys for Petitioner RENO TABLE OF CONTENTS I. INTRODUCTION ...... 0... cee eee eee ene ] Il. PETITIONER HAS NOT COMMITTED AN ABUSE OF THE WRIT BY FILING A COMPREHENSIVE EXHAUSTION PETITION ............ 0.0. ce cece eee ees 3 TH. CONCLUSION .. 2.0.0.0...ccceen eens 9 TABLE OF AUTHORITIES FEDERAL CASES Ashmus v. Calderon (N.D. Cal. 1998) 31 F.Supp.2d 1175 ............ 5 Cone v. Bell (2009) 556 U.S. 4490kccce ee ees 8,9 Cullen v. Pinholster (2011) 563 U.S. __, 131 S.Ct. 1388 «2... 6 Martinez v. Ryan (2012) 556 U.S.___, __ S.Ct. ___, 2012 WL 912950. 4 O'Sullivan v. Boerckel (1999) 526 U.S. 838 2.0... cece cece eee ee 6 Rose v. Lundy (1982) 455 U.S. 509 20... cece eee 4,8 Sanders v. United States (1963) 373 U.S.1 ...... 0.0.00 cc cece eee ee 9 Vasquez v. Hillery (1986) 474 U.S. 254 0...eceee 3,4 Wooten v. Kirkland (2008) 540 F.3d 1019 .... 02.0.0... eee ee eee 3 STATE CASES In re Clark (1993) 5 Cal.4th 770 2.0... ccc eee eens 1,9 In re Gallego (1998) 18 Cal.4th 825 02... cece eee 5 Inre Sanders (1999) 21 Cal.4th 697 2.0.0... cece eee 1 STATUTES 28 U.S.C. § 2254(b) oocnnteen ene 8 28 U.S.C. § 2254(d) oooceeeee n ete nenes 8 California Rules of Court, Rule 8.520 .. 0.0... 00.000... eee eee ee 2 TO THE HONORABLE CHIEF JUSTICE CANTIL-SAKAUYE AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF CALIFORNIA: I. INTRODUCTION. On May 10, 2004, petitioner filed his secondpetition for writ of habeas corpus with this Court. See In re Reno, Case No. 8124660. Ofthe one-hundred-forty-three (143) claims raised in the secondpetition, fifty-six (56) claims were previously raised before this Court on direct appeal or in the first petition for writ of habeas corpus (“repetitive claims”).' Eighty- seven (87) claims had not been presented to this Court previously (“non- repetitive claims’’).’ All the claims were timely submitted; state aprima facie case for relief; and allege violations of petitioner’s fundamental state and federal constitutional rights individually and in the cumulative. See generally Traverse To Respondent’s Return to This Court’s Order to Show Cause (“traverse”) (citing In re Clark (1993) 5 Cal.4th 770 and Jn re Sanders (1999) 21 Cal.4th 697). ' Claims 1, 2, 3, 4, 5, 6, 8, 9, 10, 17, 19, 24, 27, 28, 29, 30, 31, 32, 33, 38, 39, 40, 41, 47, 48, 49, 56, 57, 58, 59, 60, 61, 62, 63, 65,66, 67, 68, 70, 73, 80, 81, 82, 112, 123, and 128, were raised as claims of error on direct appeal from petitioner’s secondtrial. Claims 7, 15, 16, 18, 19, 20, 21, 25, 26, 121, and 122 were raised as claimsoferror in petitioner’s prior state habeas proceeding. Claim 19 wasraised in both direct appeal and in the first petition. ? Claims 11, 12, 13, 14, 22, 23, 34, 35, 36, 37, 42, 43, 44, 45, 46, 50, 51, 52, 53, 54, 55, 64, 69, 71, 72, 74, 75, 76, 77, 78, 79, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 113, 114, 115, 116, 117, 118, 119, 120, 124, 125, 126, 127, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, and 143 were raised for the first time in the secondpetition. 1 Over six years later, on September 15, 2010, this Court issued an Order to Show Causein regards to petitioner’s second petition. Traverse Exhibit B (September 15, 2010, Order to Show Cause). On September16, 2010, this Court issued an Amended Order to Show Cause: The Secretary of the Department of Corrections and Rehabilitation is ordered to show causebefore this court, when the matter is placed on calendar, whether the petition for writ of habeas corpusfiled in this case should be considered an abuse of the writ, for the following reasons: (listing eight reasons). Traverse Exhibit C (September 16, 2010, Order to Show Cause) (citations omitted). On November 16, 2010, respondentfiled its return to petitioner’s petition for writ of habeas Corpus. On February 28, 2011, petitioner filed his traverse. On November18, 2011, petitioner filed his first supplement to the traverse. On March 19, 2012,the Attorney General raised arguments in Coxv. Chappelle, EDCA Case No.2:04-cv-00065 MCE CKDregarding the exhaustion status of the petitioner’s petition. By this filing, petitioner seeks to supplementhis traverse in light of those arguments. Petitioner thus respectfully requests that this Court consider the matters raised in this supplementto the traverse and determinethat petitioner did not abuse the writ by filing his petition.’ > Petitioner’s supplement has been timely submitted in accordance with the California Rules of Court. See generally California Rules of Court, Rule 8.520(d)(1) and (2). The cited rules apply to direct appeals, however, petitioner has complied with the requirements nevertheless. This supplement only addresses matters that were not available in time to be included in his prior supplement. This supplement has been timely filed within ten days of oral argument in petitioner’s case. Oversix years later, on September 15, 2010, this Court issued an Order to Show Cause in regardsto petitioner’s second petition. Traverse Exhibit B (September 15, 2010, Order to Show Cause). On September 16, 2010, this Court issued an Amended Order to Show Cause: The Secretary of the Department of Corrections and Rehabilitation is ordered to show cause before this court, when the matter is placed on calendar, whetherthe petition for writ of habeascorpusfiled in this case should be considered an abuse ofthe writ, for the following reasons:(listing eight reasons). Traverse Exhibit C (September 16, 2010, Order to Show Cause) (citations omitted). On November16, 2010, respondentfiled its return to petitioner’s petition for writ of habeas Corpus. On February 28, 2011, petitioner filed his traverse. On November18, 2011, petitioner filed his first supplement to the traverse. On March 19, 2012, the Attorney General raised arguments in Coxv. Chappelle, EDCA Case No. 2:04-cv-00065 MCE CKDregarding the exhaustion status of the petitioner’s petition. By this filing, petitioner seeks to supplementhis traverse in light of those arguments. Petitioner thus respectfully requests that this Court consider the matters raised in this supplement to the traverse and determine thatpetitioner did not abuse the writ by filing his petition.’ > Petitioner’s supplement has been timely submitted in accordance with the California Rules of Court. See generally California Rules of Court, Rule 8.520(d)(1) and (2). The cited rules apply to direct appeals, however, petitioner has complied with the requirements nevertheless. This supplement only addresses matters that were not available in time to be includedin his prior supplement. This supplementhas been timely filed within ten days of oral argumentin petitioner’s case. Il. PETITIONER HAS NOT COMMITTED AN ABUSE OF THE WRIT BY FILING A COMPREHENSIVE EXHAUSTION PETITION. Petitioner’s second state petition before this Court (see In re Reno, Case No. S124660)is identical to his Operative Amended Federal Petition before the United States District Court for the Central District of California. See Reno v. Chappelle, CDDC Case No. 2:96-cv-02768-CBM,Civil Docket (“Doc”) #198. Petitioner hadto file identical petitions in state and federal court to prevent the Attorney General from alleging that his federal cumulative error claims are unexhausted. See Wooten v. Kirkland, 540 F.3d 1019 (2008) (holding that a cumulative error claim must be separate and specifically exhausted for consideration). Additionally, petitioner did not alter the languageor orderofhis claimsso that the Attorney General could not argue that his claims, or portions thereof, were unexhausted. See Vasquez v. Hillery, 474 U.S. 254, 258 (1986). In filing identical state and federal petitions, petitioner’s counsel sought to avoid the situation that recently occurred in Cox v. Chappelle, EDCA Case No. 2:04-cv-00065 MCE CKD. There, the petitioner filed a federal petition that did not identically mirror his prior state habeaspetition. The Attorney General argued that Cox’s cumulative error claim is not exhausted becauseit was not presented with all his claims in a single state petition. See Exhibit S, at 39. Petitioner Cox’s cumulative error claim was instead presented with his opening brief, supplemental petition for writ of habeas corpus, and traverse to an order to show cause. Id., at 38. The Attorney General also argued that Cox’s claims are not into a petition that satisfies federal pleading requirements. They must familiarize themselves with a lengthy and complex case, conduct investigation, conduct research, consult with experts, obtain files, and prepare a federal habeas corpuspetition. Federal counsel have at most a year (often less) to resolve these issues. Invariably, in the course of a thorough and diligent review ofthe record and the investigative leads it presents, federal counsel will discover additional claims that must be exhausted and additional facts relevant to claims that have been exhausted. For a variety of reasons - including inadequate state funding, state counsel's exhaustion of state funding for investigation and experts, inadequate state discovery, the omission ofviable claims by state counsel, or the uncovering ofnew evidence or mitigation - the task of preparing a federal petition involves the development of claims in the petitioner’s case. In fact, the development ofnew facts and new claims during federal habeas corpusinvestigation is a customary and accepted part of the California capital post-conviction litigation process. See Ashmus v. Calderon (N.D. Cal. 1998) 31 F.Supp.2d 1175, 1188-89 n. 26 (affirmed (9th Cir.) 202 F.3d 1160) (cert. denied (2000) 531 U.S. 916); and In re Gallego (1998) 18 Cal.4th 825, 834 (“Only if and when the petitioner thereafter acquires additional information offered in support of a primafacie claim, either after obtaining investigation funding from another source or by learning of the information in some other manner, does the time for promptly filing the claim commence.”). The development ofnew claims and evidence poses additional issues for federal counsel.* Those claims and that evidence cannot be presented to the federal court withoutthe petitioner first presenting them to this Court.° O'Sullivan v. Boerckel (1999) 526 U.S. 838, 842 (exhaustion requires a petitioner to give the California state courts a “fair opportunity to act” on each of his claims before he presents new claims in a federal habeas petition). In presenting those claims to this Court, federal counsel must also decide whetherto also present the claims that have already been raised in the case.® In the absence of clear guidance on howto proceed, “ The United States Supreme Court's recent decision in Cullenv. Pinholster (2011) 563 U.S. __, 131 S.Ct. 1388 has only addedto federal counsel’s confusion regarding exhaustion. Pinholster indicates that unexhausted facts cannot be considered in federal court. Jd., at 1390. Asa result, conscientious federal counsel will include everything available in the exhaustion petition, lest by not doing so their client is exposed to an unanticipated default farther down the road. Nevertheless, and as demonstrated in petitioner’s first supplementto the traverse, Pinholster supports the filing of all petitioner’s claims in a single petition and the excusal ofprocedural bars to petitioner’s claims. > In filing an exhaustion petition, federal counsel are presented with several financial obstacles. In seeking exhaustion, federal counsel does not know whether he or she will be compensated for preparing,filing, or pursuing the state exhaustion petition. Federal courts ordinarily will not compensate counsel for preparing a state petition. If federal counsel does not seek appointment from this Court, this Court will not compensate counsel. If federal counsel does accept appointment from this Court, the compensation available to counsel may be dependent upon the compensation previously received by state counsel and may not be granted for several years. ° Whether federal courts will “look through”timeliness defaults of repetitive claims is an open legal question. However, underthe rationale of Conev. Bell (2009) 556 U.S. 449, 461, federal courts should hold that a claim previously found timely, then subsequently found untimely,is not precluded in federal court. In Cone, the Supreme Court foundthat “[w]hen 6 conscientious federal counsel would decide to include all the petitioner’s claims, whetherrepetitive or non-repetitive, in the exhaustion petition to state and exhaust allegations of cumulative error and prejudice and avoid a situation as in Cox v. Chappelle, EDCA Case No. 2:04-cv-00065 MCE CKD. Here, petitioner’s counsel thus reasonably madethe decisionto file identical comprehensivepetitions with this Court and the district court. Petitioner’s approach ensuresthat all relevant claims are before the Court when it reviewshis petition. Petitioner’s approach ensuresthat this Court and the federal court reviewsidentical petitions. Petitioner’s approach preserveshis rights in federal court. Petitioner’s approach does not abuse the writ. Petitioner might have been able to reference his prior claims by a request for judicial notice, by incorporation by reference, or simply by asking this Court to consider new claims in conjunction with those it had previously rejected.’ Petitioner, however, could not be sure that such a state court declines to review the merits of a petitioner’s claim on the ground that it has done soalready, it creates no bar to federal habeas review.” Ibid. Logically then, a repetitive claim that was previously found timely and denied on the merits is not precluded in federal court simply because it was found untimely after having been presented again in a successive petition for the purpose ofproviding the state court with a single comprehensive petition and to fully demonstrate the cumulative error claim(s). ’ This approach wasrecently taken by petitioners in In re Dennis, Case No. 8201330; In re Hawthorne, Case No. 8201319; In re Hillhouse, Case No. S201327; In re Jackson, Case No. $201322; and In re Proctor, Case No. 8201346. requests would be granted and that his claims would be reviewed for the purposesofthe state record under 28 U.S.C. § 2254(d). Additionally, petitioner was concerned that the Attorney General would identify claims, portions of claims, or specific facts that were purportedly not exhausted. The Attorney General’s arguments would be potent because the inclusion of unexhausted matters in his petition could lead to its dismissal. See Rose, supra, 455 U.S. 509. While the Attorney General has the option to waive exhaustion (28 U.S.C. § 2254(b)(3)), thus permitting the matter to proceed expeditiously to federallitigation without burdening this Court with a successive petition, this is an option the Attorney General rarely ifever exercises. Indeed, as Cox v. Chappelle, EDCA Case No. 2:04-cv-00065 MCE CKD (Doc #113) demonstrates, even minoralterations in the order of allegations between state and federal court, or in the general or introductory characterization of facts, may result in the Attorney General's assertion of lack of exhaustion. In light of the risks facing petitioner, counsel decided that the only remedy to the Attorney General’s exhaustion objections wasto file identical petitions with this Court and the federal court raising all repetitive and non-repetitive claims in his case. As demonstrated alone, the issues counsel face in preparing a federal petition and exhaustion petition demonstrates that petitioner has not committed an abuse of the writ before this Court. Counsel was required to file comprehensive andidentical petitions with this Court and the district court after developing unexhausted claims. Petitioner did notfile his petition to “vex, harass, or delay” the Court (Sanders v. United States (1963) 373 U.S. 1, 18), or to conduct “abusive litigation practices.” In re Clark (1993) 5 Cal.4th 770. Petitioner filed his petition to preserve his rights, and avoid a situation as presented in Cox v. Chappelle, EDCA Case No. 2:04-cv-00065 MCE CKD.Petitioner’s petition should not be denied as an abuse of the writ. This Court should reach the merits of his claims. If. CONCLUSION. Petitioner accordingly moves to supplementhis traverse with the foregoing legal principles and arguments. Asset forth here and in the petition, informal reply, traverse, and supplementto the traverse, this Court should review all one-hundred-forty-three (143) of petitioner’s potentially meritorious claims. There are no grounds by which to conclude that petitioner has abused the writ in any one of the eight mannerslisted in this Court’s Order to Show Cause. Dated: April 20, 2012. RéspectfiNe ubmitted, PETER GIANNINI Counselfor Petitioner RENO CERTIFICATE OF COMPLIANCE CAPITAL CASE I certify that the attached PETITIONER’S SECOND SUPPLEMENT TO THE TRAVERSE TO RESPONDENT’S RETURN TO THE SECOND PETITION FOR WRIT OF HABEAS CORPUSusesa 13 point Times New Romanfont and contains 2,529 words. DATED:April 20, 2012. ay submitted, JAMES S. THOMSON PETER GIANNINI Attorneys for Petitioner Reno EXHIBITS 0 o e N Y DB D n H f - 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DANIEL J. BRODERICK,Bar #89424 Federal Defender LISSA J. GARDNER, NM Bar #9429 Assistant Federal Defender TIMOTHYJ. FOLEY, Bar #111558 Assistant Federal Defender 801 I Street, 3rd Floor Sacramento, California 95814 Telephone: (916) 498-6666 Facsimile: (916) 498-6656 Attorneys for Petitioner MICHAEL A. COX MICHAEL A. COX, Petitioner, Vv. WARDENofthe California State Prison at San Quentin, Respondent. Joint Statement Regarding Claim Exhaustion Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 1 of 47 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Case No. 2:04-cv-00065 MCE CKD DEATH PENALTY CASE JOINT STATEMENT REGARDING CLAIM EXHAUSTION Cox v. Warden, 2:04-cv-00065 MCE CKD r e W w W N oO o S e A N DB D M N 10 ie 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Til. Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 2 of 47 TABLE OF CONTENTS BACKGROUND. ......... 0.02 e eeee tenet beeen eens 1 A. Petitioner’s Position. 2.1...eeeeee eee eee eens 1 B. Respondent’s Position... 2.0... 2... ccccee teen teen ee eenae 1 C. Joint Statement of the Parties. 2.0.2... 0Leceeeee 1 GENERAL DISCUSSION REGARDING EXHAUSTION PRINCIPLES .......... 1 A. Petitioner’s Position, 2... 0... e ceceee tne n ence eens 1 B. Respondent’s Position. ........ 0.00.0. e eeeee eens 3 DISCUSSION OF CLAIMS...... 2...ceecece eens 5 CLAIM 1 1...eeeteen n beet eee eens 5 A. Petitioner’s Position. ... 2... cece cece eee tee 5 B. Respondent’s Position - Attorney conflict of interest clam. .......... 7 CLAIM 22 20.nete eee e eens 8 A. Petitioner’s Position. .... 2... cee eee eee eee eee eens 8 B. Respondent’s Position - Reference to Joanna Polygraph. ............ 9 CLAIM 23 2...eeceetenner tee tenet e bene ene eeee 10 A. Petitioner’s Position. 2... 0... eeeeee nee eee 10 B. Respondent’s Position - Prosecutorial Misconduct- reference to Joanna protective custody. ..... 0.0.0... cee eee ee eee 12 CLAIM 24 2.0.eeceecette eee eee e een e eens 13 A. Petitioner’s Position. .. 2.0... cececece eens 13 B. Respondent’s Position - Joanna’s testimony about sexual overture. 2...eetect e eee eens 14 CLAIM 25 1...eeeene tenes Leen cence eens 15 A. Petitioner’s Position. .. 2.2.2.2... cee eee eee eee 15 B. Respondent’s Position - Testimony about gun possession. .......... 16 Joint Statement Regarding Claim Exhaustion i Cox v. Warden, 2:04-cv-00065 MCE CKD o f o S s D D 10 1] 12 13 14 15 16 17 18 19 20 2] 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 3 of 47 CLAIM 26 2.0...cccent eect ete t ene eee n ens 17 A. Petitioner’s Position. ... 0.0... cece ce eee ee teens 17 B. Respondent’s Position - Testimony about Debbie Galston’s fear of Petitioner. . 2.0... 2.keeee tee een ee 19 CLAIM 27 2.0...eeete ene nee e eee teens 19 A. Petitioner’s Position. ....... 0... eee eee ee eee eee eee 19 B. Respondent’s Position- Testimony about Darlene’s fear of Petitioner... 0...eececeene eens 20 CLAIM 28 1.0... ceecettenen ene ent e beeen eens 21 A. Petitioner’s Position. ........ 0.00. e ee eee een ene eens 2) B. Respondent’s Position - Testimony about Joanna’s trips to the scene. 2...cecetee eee nee eee n eee 22 CLAIM 31 2... eeee enn ete eee nent een nee 23 A. Petitioner’s Position .. 2.0.0.2... 0.0 cece ee eee eee eee 23 B. Respondent’s Position - Absence from reread oftestimony. ......... 26 CLAIM 32 2.0...eceennee n eee beeen eee enes 27 A. Petitioner’s Position. ... 2.0... ee eee cece ee eee ee 27 B. Respondent’s Position - Prosecutorial Misconduct Penalty phase argument. ..... 0.0... eee eee ee eee ees 29 CLAIM 33 2...eeenrenee bene eee een e eens 30 A. Petitioner’s Position. ... 2... 2... eee ee cee ee eee eee ees 30 B. Respondent’s Position - Restriction upon defense penalty argument. 2. eeee ee eee eee eens 3] CLAIM 34 2.0...eeeeeent e eben e eee nee e ees 32 A. Petitioner’s Position. ...... 2.0... eee eeeee ee eee 32 B. Respondent’s Position - Due processinstructional error failure to instruct that life meanslife. ............ 0.0... c ce eee eee eee 33 CLAIM35ccccen eee nee e eben een ene nes 34 A. Petitioner’s Position. ... 2.2.2... 0. eeeee tenes 34 B. Respondent’s Position - Failure to instruct that other crimes must be shown beyond a reasonable doubt. ...................... 35 Joint Statement Regarding Claim Exhaustion il Cox v. Warden, 2:04-cv-00065 MCE CKD Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 4 of 47 CLAIM 39 1.0... cecceeeen ete n een teen eee n een eees 36 A. Petitioner’s Position. 2... 2... eee eee eee ee eee eee 36 B. Respondent’s Position - Error regarding the jury’s request for information. ....... 0... eee eee eee e beeen eee 37 CLAIM 49 1.0.enetenet ee eee eens 38 A. Petitioner’s Position. 1... 0... 0... cece eee eee ee ee eee 38 B. Respondent’s Position - Cumulative error. ..............0 0000 ee 39 TV. CONCLUSIONS. ..........0.. 02 cccete ne ete e eens 40 A. PETITIONER’S CONCLUSION........... 00... cece eee eee ees 40 B. RESPONDENT’S CONCLUSION. Joint Statement Regarding Claim Exhaustion ili Cox v. Warden, 2:04-cv-00065 MCE CKD o f o N Y NW N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 5 of 47 TABLE OF AUTHORITIES FEDERAL CASES Adamsonv. California, 332 U.S. 46 (1947) 26.cccee eee eee eee 6 Badger v. Cardwell, 587 F.2d 968 (9th Cir. 1978) 2.1...eee eee eee 25 Beck v. Alabama, 447 U.S. 625 (1980) 0.0... 0... c cece eee eee ene ees 32 Blackwell v. Brewer, 562 F.2d 596 (8th Cir. 1977) 0.0...cee 25 Blandv. California Department ofCorrections, 20 F.3d 1469 (9th Cir. 1994) ............. 2 Booth v. Maryland, 482 U.S. 496 (1987)...0.cececee eee 28 Burger v. Kemp, 483 U.S. 776 (1987) 2.0.0.eceeeeee tees 24, 27 Bustamonte v. Eyman, 456 F.2d 269 (9th Cir. 1972) 2.0.eee 24, 27 Caldwell v. Mississippi, 472 U.S. 320 (1985) 2.0...ceenee 29, 32 California v. Brown, 479 U.S. 538 (1987) 0...ceeeee 30 Carpenter v. Edwards, 529 U.S. 446 (2000) .. 0...eeeee 4 Carriger v. Lewis, 971 F.2d 329 (9th Cir. 1992) 2...eee passim Cartwright v. Cupp, 650 F.2d 1103 (9th Cir. 1981) 0...eeeeee eee 3 Castille v. Peoples, 489 U.S. 346 (1989)...ceence eee 4 Castillo v. McFadden, 399 F.3d 993 (9th Cir. 2005)... eeeece eee passim Chacon v. Wood, 36 F.3d 1459 (9th Cir. 1994) 2...ceeeen nes a) Chapmany. California, 386 U.S. 18 (1967) 2...cccee eens 8 Coleman v. Thompson, 501 U.S. 722 (1991) 0...ceceeee eee 4 Cooperv. Neven, 641 F.3d 322 (9th Cir. 2011)... 0...eeeee ee eee 3 Darr v. Buford, 339 U.S. 200 (1950) 2...eeeeee t ene eee 3,4 Davis v. Silva, 511 F.3d 1005 (9th Cir. 2008)... 2.2.02. eeeeee eee 2, 7, 26 Duncan v. Henry, 513 U.S. 364 (1995) 0...ccee eee eens passim Eddings v. Oklahoma, 455 U.S. 104 (1982) 2.0... cece ee cee een eee 28, 29 Fahy v. Connecticut, 375 U.S. 85 (1963)...ccteens 8 Fields v. Waddington, 401 F.3d 1018 (9th Cir. 2005) .... 02... eee ee eee passim Joint Statement Regarding Claim Exhaustion iv Cox v. Warden, 2:04-cv-00065 MCE CKD O o c3 o m m W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 6 of 47 Fisher v. Roe, 263 F.3d 906 (9th Cir. 2001) 1.0... eeeceeeee 25, 26 Furman v. Georgia, 408 U.S. 238 (1972) 2...eeeeens 32 Gideon v. Wainwright, 372 U.S. 335 (1963) 2.2... cecece een eens 6 Gregg v. Georgia, 428 U.S. 153 (1976) 66eeeee 30, 31, 32 Hall v. Wainwright, 733 F.2d 766 (11th Cir. 1984) 2.0.0...eee 24, 25 Hance v. Zant, 696 F.2d 940 (9th Cir. 1983)... 0.06ceee eee ees 28 Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) 22...eeece eee passim Hopt v. Utah, 110 U.S. 574 (1884) 20...cececent e eee 24, 27 Illinois v. Allen, 397 U.S. 337 (1970) 2...neeeens 24, 25 Insyxiengmay v. Morgan, 403 F.3d 657 (9th Cir. 2005) «0.0... eee ee eee 18, 22, 35, 37 Jackson v. Roe, 425 F.3d 654 (9th Cir. 2005) 2.0...eens 40 Jefferson v. Budge, 419 F.3d 1013 (Oth Cir. 2005) 2...eepassim King v. Ryan, 564 F.3d 1133 (9th Cir. 2009)...eeecee eee 40 Lewis v. United States, 146 U.S. 370 (1892) .. 0...es 24, 27 Lockett v. Ohio, 438 U.S. 586 (1978) 20.eeeeee ee eens passim Malloy v. Hogan, 378 US. 1 (1964) 2...cecetence 6, 31 Mattox v. United States, 146 U.S. 140 (1892)... 0...eee 10, 11 Moorev. Illinois, 408 U.S. 786 (1972) 2.0...eeeens passim Near v. Cunningham,313 F.2d 929 (4th Cir. 1963) 22...ceeeee 25 O'Sullivan v. Boerckel, 526 U.S. 838 (1999) ...00eeeens 3,4 Pappageorge v. Sumner, 688 F.2d 1294 (9th Cir. 1982)... 0.2.0... eee eee eee passim Peterson v. Lampert, 319 F.3d 1153 (9th Cir. 2003)...2.eeeeee 2 Picard v. Connor, 404 U.S. 270 (1971) 000ceeee eee ene 2 Powell v. Alabama, 287 U.S. 45 (1932) 2.0...eeeeeee eens 6, 7 Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir. 1982) 2.2.2... ceeeee ee eee 24 Robinson v. California, 370 U.S. 660 (1962) 1.2...cccee eee 31 Schiers v. California, 333 F.2d 173 (1964) .... 0.ceeeeees 3 Smith v. Goguen, 415 U.S. 566 (1974) 2...cenee ee 2 Joint Statement Regarding Claim Exhaustion Vv Cox v. Warden, 2:04-cv-00065 MCE CKD n A F e Ww W W N o o a S N D D 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 7 of 47 Solis v. Garcia, 219 F.3d 922 (9th Cir. 2000) .. 0...ceeee eee 38 Tamapua v. Shimoda, 796 F.2d 261 (9th Cir. 1986) 2.0... eeece eee 2, 9, 22 Twining v. New Jersey, 211 U.S. 78 (1908) 6.0eeeteen eens 6 United States v. Crutcher, 405 F.2d 239 (2d Cir. 1968) 0.0.02... 0cceeeee 25 Vasquez v. Hillery, 474 U.S. 254 (1986) 1...eeeeen eee 35 Walker v. Martin, U.S.__, 131 S.Ct. 1120 Q011) .......0.eee eee 4 Williams v. Craven, 460 F.2d 1253 (9th Cir. 1972) 2...ceceees 3 Wood v. Georgia, 450 U.S. 261 (1981) 2.ccceneee 6,7 Woodson v. North Carolina, 428 U.S. 280 (1976) 2.2.2...eee 28, 30, 31 Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008) 2.0... cececeeee eee 38 STATE CASES In re Cox, 30 Cal. 4th 974 (2003) 22... cc eeeeeeeee cee eee eee 39 People v. Brown, 40 Cal. 3d 512 (1985) ookeeee teens 37 People v. Cox, 30 Cal. 4th 916 (2003) 2...ccceee nee passim People v. Hogan, 31 Cal. 3d 815 (1982) 1... 0... 2. cee eee Lecce eee eee passim People v. Noguera, 4 Cal. 4th 599 (1992) 0...ceeeee eee 18 People v. Ramos, 37 Cal. 3d 136 (1984) 0...ceeeens 33 FEDERAL STATUTES 28 U.S.C. § 2254(b)2.eentenet nent eee e eens 1,3 Joint Statement Regarding Claim Exhaustion vi Cox v. Warden, 2:04-cv-00065 MCE CKD & Ww W W N O o O o S N N H M N 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 8 of 47 Pursuant to the Court’s orders of January 18, 2012 (Doc. 110) and February 29, 2012 (Doc. 112), the parties submit this Joint Statement Regarding Claim Exhaustion. I. BACKGROUND. A. Petitioner’s Position. The Petition for Writ ofHabeas Corpusin this matter was filed on June 28, 2005, raising 53 claims. Doc. 32. Proceedings were stayed during the pendency of a 2005 state court petition. In re Cox, California Supreme Court, No. $135128. The stay ofproceedings waslifted by order dated July 28, 2010. Doc. 80. Respondent filed an Answer on July 1, 2011, and petitioner filed a Traverse on October 31, 2011. Doc. 96, Doc. 102. In the Answer, Respondentraised objections based on a failure to exhaust all or part of the claim with regard to 21 claims: Claims1, 2, 5, 8, 10, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 38, 39, and 49. Petitioner asserted in the Traverse that all claims were exhausted. Pursuant to the Court’s directive, the parties have exchanged e-mails regarding their viewpoints. Upon reconsideration, respondent withdraws any exhaustion-based objection to Claims 2, 5, 8, 10, 30, and 38 and concedesthat those claims have been exhausted. B. Respondent’s Position. Respondent, however, maintains that portions of claims 2, 5, 8, and 10 are procedurally defaulted. In addition, despite meeting and conferring, Respondent laments that Petitioner refused to make any concessions regarding their exhaustion positions. C. Joint Statement of the Parties. Asto Claims 1, 22, 23, 24, 25, 26, 27, 28, 31, 32, 33, 34, 35, 39, and 49, however, the exhaustion question is disputed. Il. GENERAL DISCUSSION REGARDING EXHAUSTION PRINCIPLES A. Petitioner’s Position. Underboth statute (28 U.S.C. § 2254(b)) and case law, a habeaspetitioner in federal court must have exhausted the remedies available in the state courts. This exhaustion doctrine Joint Statement Regarding Claim Exhaustion ] Cox v. Warden, 2:04-cv-00065 MCE CKD 0 O o DW I K H W N F F W w N H N D R a e S m y o P R R R B E SS C B R A A R H B R H R RE CO Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 9 of 47 requires generally that each claim raised in a federal habeas petition befirst presented to the state courts, if there is an available state remedy. Picard v. Connor, 404 U.S. 270, 275-278 (1971). In order to exhaust a claim,the petitioner has to present the “substance” of the claim to the state court so that the state court has a “fair opportunity” to rule on the merits of the claim. Duncanv. Henry, 513 U.S. 364, 365-366 (1995); Chacon v. Wood, 36 F.3d 1459, 1467-1468 (9th Cir. 1994.) The language of the claim presented to the state court and the claim before the federal court need not be the same,as long as the “substantial equivalent” of the claim has been presented in state court. Picard v. Connor, 404 U.S. at 278. A federal claim is fairly presented, then, if the operative facts and the basis for the legal theory are described in the state pleadings. Blandv, California Department of Corrections, 20 F.3d 1469, 1472-1473 (9th Cir. 1994); see Smith v. Goguen, 415 U.S. 566, 576-577 (1974); | Peterson v. Lampert, 319 F.3d 1153, 1155- 1156 (9th Cir. en banc 2003). Obviously, a petitioner might present a claim in state court in a different manner than he might in federal court. For example, there might be parallel state law claim, statute, or authority that is emphasizedin the state court proceedings. Or a petitioner might choose to emphasize different factual or legal aspects of a claim in different courts. As long as the state court is made aware ofthe federal claim, the issue has been exhausted. Indeed, even an explicit reference to a particular federal constitutional provision is not necessary if the state court presentation “cite[s] either federal or state case law that engages in a federal constitutional analysis.” Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005); see Davis v. Silva, 511 F.3d 1005, 1011 (9th Cir. 2008)[‘‘a legal theory is fairly presented whena citation is provided to the relevant case law”]; Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986) [“A habeas petitioner may. . . reformulate somewhatthe claims madein state court; exhaustion requires only that the substance of the federal claim be fairly presented.”]. In reviewing respondent’s assertions in the Answer, petitioner notes that respondent appears to be asserting a hyper-technical and incorrect view of the exhaustion doctrine. As noted, there is no need to use the languagein the federal petition in the state court presentation. Joint Statement Regarding Claim Exhaustion 2 Cox v. Warden, 2:04-cv-00065 MCE CKD B R W w N N o w o S N H D N N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document113_ Filed 03/19/12 Page 10 of 47 There is no need for a magic wordorritualistic incantation. Ifthe factual basis and the legal theory underlying the claim are presented to the state court, it is enough. B. Respondent’s Position. The requirementoffair presentation to the state’s highest court is self-executing. The language of 28 U.S.C. § 2254(b)(1), codifying the requirement of exhaustion,bars relief on any federal-petition-asserted theory of relief unless and until the Respondent expressly waives that protection. 28 U.S.C. § 2254(b)(2). Petitioners bear the burden of establishing that their federal claims were exhausted byfair presentation to the state high court in a procedurally appropriate manner. Darr v. Buford, 339 U.S. 200, 218-19 (1950); O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981); Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972) (citing Schiers v. California, 333 F.2d 173 (9th Cir. 1964)); 28 U.S.C. § 2254(b)(1), (b)(1)(A). Exhaustion requires the petitioner to “fairly present”his claims to the highest court ofthe state ... In orderto fairly present a claim, the petitioner mustclearly state thefederal basis and thefederal nature of the claim along with relevant facts... Cooperv. Neven, 641 F.3d 322, 326-27 (9th Cir. 2011) (emphasis added). “Mere ‘general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial,’ do not establish exhaustion.” Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (quoting Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999)); see also Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005) (A federal claim is not exhausted “by a petitioner’s mention, in passing, of a broad constitutional concept, such as due process.”). The United States Court of Appeals for the Ninth Circuit (Ninth Circuit) has specifically held that a petitioner’s “conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory...” failed to satisfy the fair presentation requirement. Castillo v. McFadden, 399 F.3d at 1003 (“Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.”). But that is not all. The Supreme Court is explicit that for presentation to a state court to Joint Statement Regarding Claim Exhaustion 3 Cox v. Warden, 2:04-cv-00065 MCE CKD R h Ww W W N N O 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 11 of 47 be “‘fair,” it must be under circumstances which normally would allow the state court to reach the merits under the state court’s own rules. Castille v. Peoples, 489 U.S. 346, 350-51 (1989). Petitioners must merely point to precisely where in the California Supreme Court pleadings they clearly identified the very same theory they are advancing in federal court. Norwill it suffice for a petitioner to claim it is too late to fairly present a given theory — such as for the reason he or she has waited too long, and that therefore the claim based on that theory is technically exhausted, even though notproperly exhausted. The federal bar for lack of proper exhaustion applies not only when there remains a state remedy, butalso — via the ‘inseparab[le]” procedural default rule — when a state remedy is no longer available dueto delay: Werecognized the inseparability of the exhaustion rule and the procedural-default doctrine in [Coleman v. Thompson, 501 U.S. 722 (1991)]: “In the absence ofthe independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state ground doctrine ensuresthat the States’ interest in correcting their own mistakesis respected in all federal habeas cases.” 501 U.S., at 732 []. We again consideredthe interplay between exhaustion and procedural default last Term in O'Sullivan v. Boerckel, 526 U.S. 838 [] (1999), concluding that the latter doctrine was necessary to “protect the integrity’ ofthe federal exhaustion rule.” Id., at 848 [] (quoting id., at 853 [] (STEVENS,J., dissenting)). The purposes of the exhaustion requirement, we said, would be utterly defeated if the prisoner were able to obtain federal habeas review simply by “‘letting the time run’”so that state remedies were no longer available. Id., at 848 []. Those purposes would be noless frustrated were we to allow federal review to a prisoner who had presented his claim to the state court, but in such a mannerthat the state court could not, consistent with its own procedural rules, have entertained it. In such circumstances, though the prisoner would have “concededly exhaustedhis state remedies,” it could hardly be said that, as comity and federalism require, the State had been given a “fair ‘opportunity to pass upon[his claims].’” Id., at 854 [] (STEVENS,J., dissenting) (emphasis added) (quoting Darr v. Burford, 339 US. 200, 204 [] (1950)). Carpenter v. Edwards, 529 U.S. 446, 452-53 (2000) Thus, even whena petitioner proves(as part ofhis affirmative burden to show exhaustion) that there is no state court remedy available because he now would face a procedural bar which would deny him a state court ruling on the merits, the claim will be barred on federal habeas becauseofthat facially independent bar. See Walker v. Martin, U.S., 131 S.Ct. 1120, 1126, 1128-29 (2011) (state law procedural bar cannot be deemed invalid becausea state court has discretion to forego bar in favor ofreaching merits); id. at 1130 (placing affirmative Joint Statement Regarding Claim Exhaustion 4 Cox v. Warden, 2:04-cv-00065 MCE CKD oO o f o D Y D n A F f W Y N Y w o N O B e B e S e S e S F P P S E e h S e L U L U m D S m v p e p e B B R SS S e R e X A A R H H K H HF SO Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 12 of 47 burden of “showing”invalidity on prisoner challenging state procedural bar, andrejecting “seeming inconsistencies”as basis to invalidate bar). Respondent’sposition is that Petitioner is trying to expand this case in every conceivable way and at every turn. Nowis the time to pare this matter down. Going forward, Respondent must have a merits decision in order to obtain deference in this Court, and if there is no merits decision below,the claim is either unexhausted or procedurally defaulted. TI. DISCUSSION OF CLAIMS. CLAIM 1 A. Petitioner’s Position. Claim 1 involvesthe allegation that petitioner’s trial counsel labored undera conflict of interest in violation ofthe Constitution. Petition, 41-47. As noted in the Traverse, the claim was presented to the California Supreme Court in the Appellant’s Opening Brief (““AOB”), filed August 5, 1987, pages 28-42, the Appellant’s Reply Brief (“ARB”),filed March 1, 1988, pages 2-9, and the supplemental letter briefof March 7, 2002, pages 2-4. The factual presentation included testimonyatthe state habeas hearingin state court. See, e.g., HRT 6879-6900. Traverse, 6-7. The respondentasserts that “portions of this claim are unexhausted and must be dismissed, including butnot limited to claims involving the Eighth and Fourteenth Amendments.” Answer, 10. Respondent admits that the conflict of interest “claims” were raised in the direct appeal. Answer, 59. Indeed, respondentasserts that the California Supreme Court rejected the claims in a reasoned opinion and quotes extensively from that opinion. Answer, 59-61. But respondentalsoasserts that “Petitioner failed to argue that any conflict of interest violated either the Eighth or Fourteenth Amendments. As such, these new theories have not been exhausted and must be deleted...” Answer, 59. In responding to the respondent’s hyper-technical view, it should be noted that the claim in the petition alleges that the “convictions and sentence are unlawfully and unconstitutionally imposed,in violation of the Sixth, Eighth, and Fourteenth Amendmentsto the United States Joint Statement Regarding Claim Exhaustion 5 Cox v. Warden, 2:04-cv-00065 MCE CKD O o f o N Y D n n A f F W Y S N 10 il 12 13 14 15 16 17 18 19 20 2] 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 13 of 47 Constitution, becausepetitioner’s counsel had a potential or actual conflict ofinterest that affected the trial, and the trial judge failed in his duty to inquire into the circumstances and ramifications of the conflict.” Petition, 41. The petition goes on to allege that a potential or actual conflict of interest existed with regard to defense counsel and four prosecution witnesses: Shirley Winn, Lisa Delashaw, James Carter, and Darin McArthur, and details the factual backgroundofthese potential or actual conflicts. Petition, 41-47. The petition also asserts that the trial court, having been alerted asto the potential or actual conflicts, failed to inquire adequately into the nature and effect of the conflict of interest. Petition, 41,47. Respondent seemsto believe that petitioner has raised three (or more?) separate claims. Not so. Rather this is a claim with several constitutional underpinnings. In the state court briefing, state appellate counsel raised these conflicts primarily as a claim involving the right to full and effective counsel under the Sixth Amendment and the California Constitution. Such is the logical foundation of the right to conflict-free counsel. But the claim also contains Fourteenth and Eighth Amendmentaspects. First, as a fundamental premise of Constitutional doctrine, any challenge based on the Sixth Amendmentraised in a state court proceeding incorporates, by its very nature, the due processclause ofthe Fourteenth Amendment. Thatis: the only reason the Sixth Amendmentis applicable in state court proceedingsin the first place is because the right to counselis a fundamental right implicit in the concept of ordered liberty and consequently applicable to state courts as part of due process. Malloy v. Hogan, 378 U.S. 1, 6 (1964); Gideon v. Wainwright, 372 U.S. 335, 343-344 (1963).' In addition, state counsel specifically cited Powell v. Alabama, 287 U.S. 45 (1932) (see AOB, page 29) which holds that the denial of counsel in a capital case is a violation of the Fourteenth Amendment, and Woodv. Georgia, 450 U.S. 261 (1981) (see AOB page 30, 35; ARB pages 8-9), which holdsthat a conflict of interest caused by a single attorney 1 The Bill of Rights originally was only applicable to the federal government. See Adamsonv. California, 332 U.S. 46, 51 (1947). Only after the Fourteenth Amendment, and only via the incorporation doctrine, did the vast majority of Bill of Rights provisions become applicable to the states. See Twining v. New Jersey, 211 U.S. 78, 89-100, 106-107 (1908). Joint Statement Regarding Claim Exhaustion 6 Cox v. Warden, 2:04-cv-00065 MCE CKD B& B Ww W N N a N D M N 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 14 of 47 representing more than one defendantin a criminal proceeding mayviolate the due process clause of the Fourteenth Amendment. The need for extrareliability in a capital prosecution -- the Eighth Amendment aspect-- wasraised in the discussion of Lockett v. Ohio, 438 U.S. 586, 605 (1978) (AOB,page 30). Lockett stands for, among other things, the concept that extra reliability is required in assessing the penalty in a capital case. Proceedings should minimizethe “risk that the death penalty will be imposedin spite of factors which maycall for a less severe penalty. When the choice is between life and death,that risk is unacceptable and incompatible with the commandsofthe Eighth and Fourteenth Amendments.” 438 U.S. at 605. Obviously, the California Supreme Court was aware that this was a capital case. Petitioner’s state counsel raised the federal constitutional aspects of the claim through specific citations to the federal Constitution and specific citations of federal opinions. The state court had a fair opportunity to act on the claim. Davis v. Silva, 511 F.3d at 1009. The claim is exhausted. B. Respondent’s Position - Attorney conflict of interest claim. Petitioner raised Sixth Amendmentattorney conflict of interest claims in his direct appeal opening brief (AOB) before the California Supreme Court on August 5, 1987, at pages 28-42. However, Petitioner failed to argue that any conflict of interest violated either the Eighth or Fourteenth Amendments. As such, these new theories have not been exhausted and must be deleted, lest the entire petition should be dismissed. Jefferson v. Budge, 419 F.3d 1013, 1016 (9th Cir. 2005); Carriger v. Lewis, 971 F.2d 329, 333-34 (9th Cir. 1992); Pappageorge v. Sumner, 688 F.2d 1294, 1294-95 (9th Cir. 1982). During the meet and confer process, Petitioner argued that: the Fourteenth Amendment elements of the conflict claim wereraised in state court, via the discussion ofPowell v. Alabama, 287 U.S. 45 (1932) in Petitioner’s AOB at page 29, and Wood v. Georgia, 450 U.S. 261, 271 (1981) at AOB page 30. Petitioner also averred that the Eighth Amendmentaspect wasraised throughhis citation to Lockett v. Ohio, 438 U.S. 586, 605 (1978) at AOB page 30. The passing references to Powell v. Alabama (not a conflict case), without any point page Joint Statement Regarding Claim Exhaustion 7 Cox v. Warden, 2:04-cv-00065 MCE CKD 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 15 of 47 citation, Wood v. Georgia, and Lockett v. Ohio,failed to fairly present either the Fourteenth or Eighth Amendmentnature ofthe claim. It is simply not fair presentation to fail to mention either amendmentin the state pleading and expectthe state high court to search through the myriad of case citations and speculate that Petitioner meant to assert matters notstated plainly by heading or within the body ofthe pleading. In addition, these case citations follow specific reference to the Sixth Amendment (AOB29), and the California Supreme Court interpreted Petitioner’s claim as based solely upon the Sixth Amendment. People v. Cox, 30 Cal.4th 916, 947-51 (2003). These added references were simply notfairly presented and remain unexhaustedhere. Fields v. Waddington, 401 F.3d at 1021; Castillo v. McFadden, 399 F.3d at 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. CLAIM 22 A. Petitioner’s Position. Claim 22 involves the prosecutor’s misconduct in deliberately referring to a polygraph examination during the direct examination of Joanna Napoletano. The claim wasasserted in pleadings during the state court appeal: AOB at pages 43-85, 179-182, the ARB at pages 10-15, and Appellant’s Letter Brief, filed March 7, 2002, at page 7. See Traverse, 43. Nonetheless, respondent complainsthat petitioner “has not exhausted portionsofthis claim” and did notsufficiently “federalize the claims beyond his prosecutorial misconduct claim and confrontation claim and fairly place the state court on notice that the additional assertions he wasraising were anything but state law based assertions.” Answer, 16, 155. Respondent’s argumentis contradicted by the record. On page 79 of the AOB, petitioner’s counsel specifically cites the Sixth and Fourteenth Amendments, Chapman v. California, 386 U.S. 18 (1967), and Fahy v. Connecticut, 375 U.S. 85 (1963). In addition, petitioner’s counsel devoted a special section of the AOB to the federalization of a number of claims, includingthis one, citing the Fifth Amendment and the Fourteenth Amendmentas well as Moorev.Illinois, 408 U.S. 786 (1972). AOB, 179. At page 180 of the AOB,the brief specifically states that “the prosecutor’s suggestion that Napoletano had taken a polygraph Joint Statement Regarding Claim Exhaustion 8 Cox v. Warden, 2:04-cv-00065 MCE CKD Y I n H n A FS F W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 16 of 47 examination constituted a federal constitutional violation .. .” Surely this is enough to make the state court aware that the petitioneris raising a federal constitutional violation. State court counsel wentfurtherin letter brief filed on March 7, 2002, asserting that: “federal courts have acknowledgedthat a reference to the taking of a polygraph examination is the type of error which can makea trial fundamentally unfair pursuant to the due process claims, and thus is cognizable on federal habeas corpus,”citing a Ninth Circuit opinion and a Seventh Circuit opinion. Appellant’s Letter Brief, filed March 7, 2002, at page 7. In light of these references,it is difficult to understand the respondent’s complaint. Asnoted, a federal petition “may . . . reformulate somewhat the claims madein state court; exhaustion requires only that the substance of the federal claim be fairly presented.” Tamapuav. Shimoda, 796 F.2d at 262. But the state court wasfully apprised that petitioner was raising a federal constitutional claim. The claim is exhausted. B. Respondent’s Position - Reference to Joanna Polygraph. Petitioner contendsthat his Fifth, Sixth, Eighth, and Fourteenth Amendmentrights have been infringed. Specifically, Petitioner argues that the prosecutor committed misconduct when heelicited testimony from Joanna about a polygraph examination, and that the trial court erroneously denied his mistrial motion. Petitioner opines that these facts violated his rights to due process, a fair trial, confrontation, the proper application of state evidentiary rules, and a non-arbitrary penalty determination. Petition 109-10. Petitioner has failed to exhaust any federal claims based uponthe Fifth and Eighth Amendments, the properapplication of state evidentiary rules, and a non-arbitrary penalty determination, and he has procedurally defaulted any confrontation argumentby failing to proffer a contemporaneousobjection. Beyondhis prosecutorial misconduct claim and confrontation claim, Petitioner raised state law based claims regarding the polygraph reference in his AOBat pages 43-85. Simply put, Petitioner did not federalize the claims beyondhis prosecutorial misconduct claim and confrontation claim, and did notfairly place the state court on notice that his assertions were anything but state law based claims. As such, these new theories have not been exhausted and Joint Statement Regarding Claim Exhaustion 9 Cox v. Warden, 2:04-cv-00065 MCE CKD & W w N d o O o o n N D D 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 17 of 47 must be deleted, lest the entire petition should be dismissed. Jefferson v. Budge, 419 F.3dat 1016; Carriger v. Lewis, 971 F.2d at 333-34; Pappageorge v. Sumner, 688 F.2d at 1294-95. During the meet and conferprocess, Petitioner argued that: the “federal constitutional dimension”of the claim includingcitations to the Sixth and Fourteenth Amendments are discussed in AOBat page 79 andagain (citing the Fifth and Fourteenth Amendments) at pages 179-82. According to Petitioner, the need for extra reliability in a capital prosecution (Eighth Amendmentaspect) wasraised in the cites to Mattox v. United States, 146 U.S. 140, 149 (1892) at AOB page 78 and People v. Hogan, 31 Cal.3d 815, 847-48 at AOB 78 and 181-82. Respondent doesnot agree that borrowing from Petitioner’s cumulative evidence claim (AOB 179-182) is fair presentation of any Fifth or Eighth Amendmentclaim pertaining to the polygraph. The pleading does not reference the properapplication of state evidentiary rules as a federal claim or non-arbitrary penalty determination. Finally, the cumulative evidence section of the AOB doesnot reference any denial of a mistrial motion. Theruling by the California Supreme Court evinced no understanding that Petitioner was raising any Fifth or Eighth Amendmentchallenge or making a federal claim based upon entitlement to certain state evidentiary rulings or a non-arbitrary penalty determination. People Cox, 30 Cal.4th at 951-54. Petitioner should not be allowed to unfairly expandhis claims here. Fields v. Waddington, 401 F.3d at 1021; Castillo v. McFadden, 399 F.3d at 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. CLAIM 23 A. Petitioner’s Position. Claim 23 involves the misconduct when the lead investigator in the case -- a prosecution witness -- asserted, in response to a question from the prosecutor, the purported fact that Joanna Napoletano wasplacedin protective custody after she asserted that she had witnessed petitioner commit murder. The claim wasasserted in pleadings during the state court appeal: The claim waspresented in the AOB,at pages 128-136, 179-182, the ARB,at pages 25-28, and Appellant’s Letter Brief, filed March 7, 2002, at page 8. Traverse, at 46. Joint Statement Regarding Claim Exhaustion 10 Cox v. Warden, 2:04-cv-00065 MCE CKD O o oO o AN Y B D v n F& F W D N Y = R O R a a S l S C Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 18 of 47 Nonetheless, respondent complains that petitioner “has not exhausted portionsof this claim.” Answer, 16. Respondentelaborates as follows: “Petitioner did not mention the Fifth, Sixth, or Eighth amendmentsor offer any argumentthat Bill Wilson committed misconduct or regarding ‘non-arbitrary penalty determination.’ As such, these additional theories are unexhausted...” Answer, 161. Respondent goes onto rely upon a lengthy quotation from the California Supreme Court analysis of this supposedly unexhausted claim. Answer, 161-162. In responding to respondent’s assertion,it is important to understandthe structure ofthe AOBfiled by state counselin state court. As to a numberof evidentiary and misconduct issues that took place during the guilt-phase portion ofthe trial, state appellate counsel emphasized state law. See AOB,43-178 (SectionsIII, IV, V, VI, VU, VII, IX). This approachis hardly surprising: counsel was arguing for reversal to a state court and evidently felt (not unreasonably) that state authorities would be more persuasive to that court. Then, in a separate section (Section X), state counsel federalized the issues, asserting that the federal constitution had also been violated in each instanceoferror. Claim 23 beganas Issue VIin the state court opening brief. The discussion there emphasizesstate law andcites state cases. But, contrary to respondent’s assertion, state counsel raised the federal aspects in the “cumulative” section X, at pages 179-182. There, the brief notes that the issues previously discussed (including the protective custody issue, see page 180) “deprived appellant of his right to a fundamentally fair trial under the constitutional guarantee of due process of law” andspecifically cites the Fifth Amendment and the Fourteenth Amendment as well as Moorev.Illinois, 408 U.S. 786 (1972) and other federal cases. AOB, 179. The brief goes on to discuss the due process clause of the Fourteenth Amendment, fundamental fairness, and federal opinions at page 181-182. The section ends with citation to People v. Hogan, 31 Cal.3d 815, 848 (1982). At that page, the Hogan case readsas follows: [A]lthough the order for a new trial would be compelled in a noncapital case underthe circumstancespresented here, the presumption ofprejudice from jury contact with inadmissible evidence is even stronger in the context of a capital case. “It is vital in capital cases that the jury should pass upon the case free from external causes tending to disturb the exercise of deliberate and unbiased judgment. Nor can any ground of suspicion that the administration ofjustice has been interfered with be tolerated.” (Mattox v. United States (1892) 146 U.S. 140, 149; accord, State v. Britt, supra [reversing Joint Statement Regarding Claim Exhaustion 11 Cox v. Warden, 2:04-cv-00065 MCE CKD O o Co O T I D D 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 19 of 47 conviction and death sentence in favorem vitae where jury learned of defendant's refusal to take a lie detectortest].) Thus, petitioner fairly presented the substance ofthe claim, the federal basis of the claim, and the need for heightenedreliability in a capital case, to the California court. The claim is exhausted. B. Respondent’s Position - Prosecutorial Misconduct- reference to Joanna protective custody. Petitioner arguesthathis Fifth, Sixth, Eighth, and Fourteenth Amendmentrights were violated by the prosecutor and Officer Bill Wilson because Wilsontestified about Joanna’s protective custody. Petitioner concludes thathis rights to due process,a fair trial, and a non-arbitrary penalty determination were infringed. Petition 111-12. Petitioner’s claims are baseless. Petitioner raised a similar prosecutorial misconduct claim in his AOBat pages 128-36. However,Petitioner did not mention the Fifth, Sixth, or Eighth Amendmentsor offer any argumentthat Bill Wilson committed misconduct or regarding “non-arbitrary penalty determination.” As such, these additional theories are unexhausted and must be deleted, lest the entire petition should be dismissed. Jefferson v. Budge, 419 F.3d at 1016; Carriger v. Lewis, 971 F.2d at 333-34; Pappageorge v. Sumner, 688 F.2d 1294. During the meet and conferprocess, Petitioner argued that: the evidentiary erroris federalized at AOB 179-82 with specific citations to the Fifth and Fourteenth Amendments and citations to federal cases. Accordingto Petitioner, the Eighth Amendmentaspect wasraisedat AOBpages 181-82 by citation to People v. Hogan, 31 Cal.3d 815. Respondentdoes notagree that borrowing from the separate cumulative error claim is fair presentation of any Fifth, Sixth, or Eighth Amendmentclaim, further there is no reference to misconduct by Officer Wilson or non-arbitrary penalty determination. Also, the cumulative state evidentiary error section does not reference the Eighth Amendment. The state high court addressed only prosecutorial misconductin association with this Joint Statement Regarding Claim Exhaustion 12 Cox v. Warden, 2:04-cv-00065 MCE CKD k h W H W N a H D N S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 20 of 47 claim. People v. Cox, 30 Cal.4th at 959-60. Petitioner did not fairly present the Fifth, Sixth, or Eighth Amendments oroffer any argumentthat Bill Wilson committed misconductor regarding “non-arbitrary penalty determination.” As such, these additional theories are unexhausted and must be deleted, lest the entire petition should be dismissed. Jefferson v. Budge, 419 F.3d at 1016; Carriger v. Lewis, 971 F.2d at 333-34; Pappageorge v. Sumner, 688 F.2d 1294. CLAIM 24 A. Petitioner’s Position. Claim 24 involvesthe presentation to the jury of the testimony of Joanna Napoletano that petitioner madea sexual overture to her andthetrial court’s erroneous denial of a mistrial with regardto this testimony. The claim wasraised in the state court appellate briefing and presented to the California Supreme Court. The claim was presented in the AOBat pages 137-143, 179- 182, the ARB at pages 29-31. Traverse, 46. Nonetheless, respondent complainsthat petitioner “has not exhausted this claim.” Answer, 16. Respondent elaborates: “Petitioner did not mention the Fifth, Sixth, Eighth or Fourteenth amendmentsor offer any argumentthat the testimony or the denialof the mistrial motion impacted his dueprocess,fair trial, or non-arbitrary penalty determination rights. It appears that Petitioner’s state arguments were based solely uponstate law. As such, these theories are unexhausted...” Answer, 164. Respondentis in error. The state court pleadingsfail to support this mistaken assertion. Asdiscussed above regarding Claim 23, state appellate counsel discussed a number of evidentiary and misconduct issues that took place during the guilt-phase portion ofthe trial, emphasizing state law. Then, in a separate section, state counsel federalized the issues, asserting that the federal constitution had also been violated. Claim 24 beganas Issue VII in the state court opening brief. Then, as discussed above with reference to Claim 23, state counsel raised the federal aspects in the “cumulative”section X, at pages 179-182. There, the brief notes that the issues previously discussed (including the sexual overture/mistrial issue, see page 180) “deprived appellant ofhis right to a fundamentally Joint Statement Regarding Claim Exhaustion 13 Cox v. Warden, 2:04-cv-00065 MCE CKD R h Ww W N s D 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 21 of 47 fair trial under the constitutional guarantee of due process of law” and specifically cites the Fifth Amendmentand the Fourteenth Amendmentas well as Moorev.Illinois, 408 U.S. 786 (1972) and other federal cases. AOB, 179. The brief goes on to discuss the due process clause of the Fourteenth Amendment, fundamental fairness, and federal opinions at page 181-182, and incorporates the importance ofincreasedreliability for capital cases -- the Eighth Amendment aspect -- by citing People v. Hogan, 31 Cal.3d at 848. Thus,petitioner fairly presented the substance ofthe claim, the federal basis of the claim, and the need for heightenedreliability in a capital case, to the California court. The claim is exhausted. B. Respondent’s Position - Joanna’s testimony about sexual overture. Petitioner argues that his Fifth, Sixth, Eighth, and Fourteenth Amendmentrights were violated by Joanna’s testimony about a sexual overture,and the trial court’s denial of his ensuing mistrial motion. Petitioner contendsthat as a result his rights to due process,a fair trial, and a non-arbitrary penalty determination were infringed. Petition 113-15. Petitioner’s rights were not violated. Petitioner raised a similar error claim in his AOB at pages 137-43. However,Petitioner did not mention the Fifth, Sixth, Eighth, or Fourteenth Amendments or offer any argument that the testimony or denial of the mistrial motion impacted his due process,fair trial, or non-arbitrary penalty determinationrights. It appears that Petitioner’s state arguments were based solely upon state law. As such, these theories are unexhausted and mustbedeleted,lest the entire petition should be dismissed. Jefferson v.Budge, 419 F.3d at 1016; Carriger v. Lewis, 971 F.2d at 333-34; Pappageorge v. Sumner, 688 F.2d 1294. During the meet and conferprocess, Petitioner argued that: the claim was federalized in the cumulative error section of the AOBat pages 179-82. Simply put, failing to reference a federal argumentin the appropriate argument section is not fair presentation. Fields v. Waddington, 401 F.3d at 1021; Castillo v. McFadden, 399 F.3d at 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. Joint Statement Regarding Claim Exhaustion 14 Cox v. Warden, 2:04-cv-00065 MCE CKD B R W w N o o e S N D H M N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 22 of 47 The state high court addressed the sexual overture claim solely under state law. People v. Cox, 30 Cal.4th at 960-61. Petitioner did notfairly present the Fifth, Sixth, Eighth, or Fourteenth Amendmentsor offer any argumentthat the testimony or denial of the mistrial motion impacted his due process,fair trial, or non-arbitrary penalty determination rights. As such, these additional theories are unexhausted and must be deleted,lest the entire petition should be dismissed. Jefferson v. Budge, 419 F.3d at 1016; Carriger v. Lewis, 971 F.2d at 333-34; Pappageorge v. Sumner, 688 F.2d 1294. CLAIM 25 A. Petitioner’s Position. Claim 25 concernsthe erroneous admission of evidence offirearms during the trial. This claim waspresentedto the state court in the state court appeal: the AOB at pages 86-102, 179- 182, and the ARB at pages 16-172 Nonetheless, respondent complainsthatpetitioner “has not exhausted this claim.” Answer, 17. According to respondent: “Petitioner did not mention the Fifth, Sixth, Eighth or Fourteenth amendments or offer any argument that the testimony impacted rights to the proper application of state evidentiary rules, or non-arbitrary penalty determination. As such these theories are unexhausted...” Answer, 167. It is difficult to understand respondent’s attempt to subdivide this claim into different “theories.” The claim is that the trial court erroneously admitted evidence that the petitioner possessedfirearms, unfairly prejudicingpetitioner’s fundamental rights. The substanceofthe claim, and its federal constitutional aspects, were presented to the state court, which hada fair opportunity to rule on the merits. Duncan v. Henry, 513 U.S. at 365-366. Nothing moreis necessary. In the AOBatpage 89,state counsel argued that this error was the equivalent to admitting 2 Petitioner inadvertently cited the wrong pages of the AOB and the ARB inthe discussion ofthis claim in the Traverse at page 47, lines 5-7. The pages cited here are the correct ones. Petitioner regrets any confusion or inconvenience causedbythis error. Joint Statement Regarding Claim Exhaustion 15 Cox v. Warden, 2:04-cv-00065 MCE CKD o O o N Y DB D v A f F W NW N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 23 of 47 evidence of other criminalacts, an error that “violate[s] a defendant’s right to due process of law by denying him fair trial.” At page 101, note 39, of the AOB,the brief notes that the admission of the evidenceof the firearms violated “due process.” If this wasall that was presented, respondent might have an argument. See, e.g., Duncan Henry, 513 U.S. at 366. But, as with Claims 22, 23, and 24,petitioner’s state counsel specifically federalized this claim in a separate section of the AOB,the “cumulative” section X, at pages 179-182. This claim beganas Issue II. At page 101, note 39, the brief directs the reader to the federalization of the issue in section X. There, the brief asserts that the error of admitting evidence of appellant’s possession offirearms (specifically identified on page 180), amongothererrors,“deprived appellantof his right to a fundamentally fair trial under the constitutional guarantee of due process of law”and specifically cites the Fifth Amendment and the Fourteenth Amendmentas well as Moorev. Illinois, 408 U.S. 786 (1972) and other federal cases. AOB, 179. As noted, the brief then goes on to discuss the due process clause of the Fourteenth Amendment, fundamental fairness, and federal opinions at page 181-182, and incorporates the importanceofincreasedreliability for capital cases -- the Eighth Amendment aspect -- by citing People v. Hogan, 31 Cal.3dat 848. The claim wasfairly presented, with the federal constitutional underpinnings identified, and the California Supreme Court had an opportunity to -- and in fact did -- rule on the claim. The claim is exhausted. B. Respondent’s Position - Testimony about gun possession. Petitioner arguesthat his Fifth, Sixth, Eighth, and Fourteenth Amendmentrights were violated by testimony abouthis firearm possession. Petitioner contendsthatas a result his rights to due process,a fair trial, the proper application ofstate evidentiary rules, and a non-arbitrary penalty determination were infringed. Petition 116-17. Petitioner’s rights were not violated. Petitioner raised a similar error claim in his AOBat pages 86-102. However, Petitioner did not mention the Fifth, Sixth, Eighth, or Fourteenth Amendments or offer any argumentthat the testimony impacted rights to the proper application ofstate evidentiary rules, or non-arbitrary Joint Statement Regarding Claim Exhaustion 16 Cox v. Warden, 2:04-cv-00065 MCE CKD b h W W O o f o n s H N 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 24 of 47 penalty determination. As such, these theories are unexhausted and must bedeleted, lest the entire petition should be dismissed. Jefferson v. Budge, 419 F.3d at 1016; Carriger v. Lewis, 971 F.2d at 333-34; Pappageorge v. Sumner, 688 F.2d 1294. During the meet and confer process, Petitioner argued that: the claim wasraised in the AOBat pages 86-102 andthe direct appeal reply brief (ARB) at pages 16-17. According to Petitioner, the federal aspect of the evidentiary error (“due process” challenge) were noted in the AOBat pages 89 and 101 with citation to Moore v.Illinois, 408 U.S. 786, 798-800 (1972) and the claim wasfederalized at AOB pages 179-182. The passing reference to Moorev.Illinois and “due process”failed to fairly present a claim under the Fifth, Sixth, Eighth, or Fourteenth Amendments, and Petitioner failed to offer any argumentthat the testimony impacted his rights to the proper application of state evidentiary rules, or a non-arbitrary penalty determination. It is simply notfair presentation to fail to mention either amendmentin the state pleading and expectthe state high court to search through the myriad ofcase citations and speculate that Petitioner meant to assert matters not stated plainly in the heading or within the body of the pleading. In addition, the California Supreme Court interpreted Petitioner’s claim as based solely upon state evidentiary law. People v. Cox, 30 Cal.4th at 955-57. Petitioner failed to properly federalize his claim in state court. These added references were simply not fairly presented and remain unexhausted here. Fields Waddington, 401 F.3d at 1021; Castillo v. McFadden, 399 F.3d at 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. CLAIM 26 A. Petitioner’s Position. Claim 26 concerns the erroneous admission of evidence of Debbie Galston’s fear of petitioner. This claim was exhausted as it was presented to the state court in the state court appeal: the AOBat pages 103-116, 179-182, the ARB at pages 18-19, and the Reply to the Attorney General’s Letter Brief, filed April 4, 2002, at pages 1-2. Nonetheless, respondent complainsthat petitioner “has not exhaustedthis claim.” Joint Statement Regarding Claim Exhaustion 17 Cox v. Warden, 2:04-cv-00065 MCE CKD 0 oO o N Y DB A v n F& F W O N Y O n g e my n e e p e B B FP S S R R A A B H H KS CO Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 25 of 47 Answer, 17. According to respondent: “Petitioner did not mention the Fifth, Sixth, Eighth or Fourteenth Amendmentsor offer any argumentthat the testimony impacted rights to due process, a fair trial, confrontation, the proper application of state evidentiary rules, or non-arbitrary penalty determination. As such, these theories are unexhausted...” Answer, 172. Onceagain, the respondent’s position is contradicted by the state court pleadings. This claim began as Issue IV in the AOB. The appellate brief argued that the admission of Shawn Philpott’s testimony that Debbie Galston wasfearful of petitioner was irrelevant and erroneously admitted, in violation of evidentiary rules. See, e.g., AOB, 108-110. As with Claims 22, 23, 24, and 25, state appellate counsel specifically federalized this issue in section X, pages 179-182, asserting that the error violated petitioner’s federal due process and fair trial rights, the Fifth and Fourteenth Amendments,and the heightened reliability requirementof capital cases. Further, in a letter brief submitted on April 4, 2002, petitioner’s state court counsel specifically reminded the California Supreme Court that this evidentiary error was not just a state law error: “appellant’s claim, in addition to the evidentiary admissibility of the statement pursuantto state law,is that admission ofthe statement denied him his federal constitutional right to confront and cross-exam [sic] witnesses against him.” Reply to the Attorney General’s Letter Brief, filed April 4, 2002, 2. The letter brief then cited People v. Noguera, 4 Cal.4th 599, 623 (1992), pinpointinga reference in that opinion to a claim that hearsay statements violated the confrontation clause of the Sixth Amendment. Id. Obviously, petitioner’s state briefing raised more than a state law evidentiary claim. “While the petitioner must refer to federal law in state court explicitly, exhaustionis satisfied oncethepetitioner makesthat explicit reference evenifthe petitioner relies predominantly on state law before the state courts.” Insyxiengmay v. Morgan, 403 F.3d 657, 658 (9th Cir. 2005). The claim is exhausted. Joint Statement Regarding Claim Exhaustion 18 Cox v. Warden, 2:04-cv-00065 MCE CKD O o oO o m s N D 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document113 Filed 03/19/12 Page 26 of 47 B. Respondent’s Position - Testimony about Debbie Galston’s fear of Petitioner. Petitioner argues that his Fifth, Sixth, Eighth, and Fourteenth Amendmentrights were violated by testimony about Debbie’s fear ofhim. Petitioner contendsthat as a result of the testimonyhis rights to dueprocess, a fair trial, confrontation, the proper application ofstate evidentiary rules, and a non-arbitrary penalty determination were infringed. Petition 118-20. Petitioner’s rights were notviolated. Petitioner raised a similar error claim in his AOBat pages 103-16. However, Petitioner did not mention the Fifth, Sixth, Eighth, or Fourteenth Amendmentsor offer any argumentthat the testimony impacted rights to due process, a fair trial, confrontation, the proper application of state evidentiary rules, or non-arbitrary penalty determination. As such, these theories are unexhausted and mustbe deleted, lest the entire petition should be dismissed. Jefferson v. Budge, 419 F.3d at 1016; Carriger v. Lewis, 971 F.2d at 333-34; Pappageorge v. Sumner, 688 F.2d at 1294. During the meet and confer process, Petitioner argued that: the claim was federalized via the cumulative error section at AOB pages 179-182. Respondentdisagrees that borrowing language from otherdiscrete claimsis fair presentation. Fields v. Waddington, 401 F.3d at 1021; Castillo v. McFadden, 399 F.3d at 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. In addition, the state high court analyzed Petitioner’s claim as one involving purely state law. People v. Cox, 30 Cal.4th at 957-58. Petitioner failed to properly federalize his claim in state court. These references were simply notfairly presented and remain unexhausted here. Fields v. Waddington, 401 F.3d at 1021; Castillo v. McFadden, 399 F.3d at 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. CLAIM 27 A. Petitioner’s Position. Claim 27 concernsthe erroneous admission of evidence of Darlene Sindle’s purported fear ofpetitioner. This claim was exhausted as it was presented to the state court in the state court appeal: the AOB,at pages 117-127, 179-182, the ARB,at pages 20-24, and the Reply to Joint Statement Regarding Claim Exhaustion 19 Cox v. Warden, 2:04-cv-00065 MCE CKD 0 f o Y D D n v A F P W w N Y N H N N N B e B e B e e e S e U e U L E lU mr Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 27 of 47 the Attorney General’s Letter Brief, filed April 4, 2002, at pages 1-2. Nonetheless, respondent complains that petitioner “has not exhausted this claim.” Answer, 17. According to respondent: “Petitioner did not mention the Fifth, Sixth, Eighth or Fourteenth amendments or offer any argument that the testimony impactedhis rights to due process,a fair trial, the proper application of state evidentiary rules, or non-arbitrary penalty determination. As such, these theories are unexhausted...” Answer, 176. As with Claim 26, the respondent’s position is directly contradicted by the state court pleadings. This claim began as Issue V in the AOB. The appellate brief argued that the admission of the testimony about Darlene’s fear of petitioner wasirrelevant and therefore improperly admitted. This claim, as with Claims 22, 23, 24, 25, and 26, was then specifically federalized in section X of the AOB,pages 179-182, where counsel asserted that the error violated petitioner’s federal due processandfair trial rights, the Fifth and Fourteenth Amendments, and the heightenedreliability requirement of capital cases. As with Claim 26, counsel further federalized this claim in theletter brief of April 4, 2002,’ specifically reminding the California Supreme Court that this evidentiary error was notjust a state law error, but also “ federal constitutional” error under the confrontation clause of the Sixth Amendment. The claim is exhausted. B. Respondent’s Position- Testimony about Darlene’s fear of Petitioner. Petitioner argues that his Fifth, Sixth, Eighth, and Fourteenth Amendmentrights were violated by testimony about Darlene’s fear of him. Petitioner contendsthat as a result of the testimonyhis rights to due process,a fair trial, the proper application of state evidentiary rules, and a non-arbitrary penalty determination were infringed. Petition 121-22. Petitioner’s rights were notviolated. 3 The April 4, 2002,letter brief discussed the two similar issues -- the admission of the testimony regarding Debbie Galston’s fear (now Claim 26) and the admission of the testimony regarding Darlene Sindle’s fear (now Claim 27)-- together. Joint Statement Regarding Claim Exhaustion 20 Cox v. Warden, 2:04-cv-00065 MCE CKD v A & — W S W N a N 10 in 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 28 of 47 Petitioner raised a similar error claim in his AOB at pages 117-27. However, Petitioner did not mention the Fifth, Sixth, Eighth, or Fourteenth Amendments or offer any argumentthat the testimony impactedhis rights to due process,a fair trial, the proper application of state evidentiary rules, or non-arbitrary penalty determination. As such, these theories are unexhausted and must be deleted,lest the entire petition should be dismissed. Jefferson v. Budge, 419 F.3d at 1016; Carriger v. Lewis, 971 F.2d at 333-34; Pappageorge v. Sumner, 688 F.2d at 1294. During the meet and confer process, Petitioner argued that: the claim wasfederalized in the cumulative error section of the AOB at pages 179-182 along with a reference to the confrontation clause of the Sixth Amendmentina letter brief filed April 4, 2002 at page 2. Respondentdisagrees that borrowing language from otherdiscrete claimsis fair presentation. Fields v. Waddington, 401 F.3d at 1021; Castillo v. McFadden, 399 F.3d at 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. In addition, the state high court analyzed Petitioner’s claim as one involving purely state law. People v. Cox, 30 Cal.4th at 958-59. Petitioner failed to properly federalize his claim in state court. These references were simply not fairly presented and remain unexhausted here. Fields v. Waddington, 401 F.3d at 1021; Castillo v. McFadden, 399 F.3dat 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. CLAIM 28 A. Petitioner’s Position. Claim 28 concerns the erroneous admission of evidence of Joanna Napoletano’s three attempts to direct law enforcement personnelto the purported scene of the Denise Galston homicide. The claim was exhausted as it was presented to the state courts in the state appeal: AOB,at pages 144-163, 179-182, and the ARB,at pages 32-37. Nonetheless, respondent complains thatpetitioner “has not exhausted this claim.” Answer, 17. According to respondent: “Petitioner did not mention the Fifth, Sixth, Eighth or Fourteenth amendmentsor offer any argument that the testimony impacted his rights to due process, the proper application of state evidentiary rules, confrontation, or non-arbitrary penalty Joint Statement Regarding Claim Exhaustion 21 Cox v. Warden, 2:04-cv-00065 MCE CKD 0 C o HY D DB D n N F& F WO W N H R O R O E R S e C E S m x n p p p b s S E S F e 2 A A R H H K HE CO Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 29 of 47 determination. As such these theories are unexhausted...” Answer, 180. Onceagain, the state court record refutes respondent’s assertions. This claim began as Issue VII in the AOB. The appellate brief argued that the admission of this evidence was contrary to evidentiary rules. But, at the risk ofbeing repetitious: this claim, as with Claims 22, 23, 24, 25, 26, and 27, was then specifically federalized in section X of the AOB,pages 179-182, where counsel asserted that the error violated petitioner’s federal due process andfairtrial rights, the Fifth and Fourteenth Amendments, and the heightenedreliability requirementofcapital cases. Respondent’s complaint appears to be with the methodology of state appellate counsel, whopitched the claims primarily as state law trial error, then presented the federal constitutional aspects of the error in a separate section of the AOB. Butthis is perfectly acceptable, as long as the federal constitutional aspects are presented to the state court. Insyxiengmay v. Morgan, 403 F.3d at 658; Tamapua v. Shimoda, 796 F.2d at 262. The claim is exhausted. B. Respondent’s Position - Testimony about Joanna’s trips to the scene. Petitioner argues that his Fifth, Sixth, Eighth, and Fourteenth Amendmentrights were violated by testimony about Joanna’s trips to the scene of Denise’s murder with law enforcement. Petitioner contends that asa result his rights to due process, a fair trial, the proper application of state evidentiary rules, confrontation, and a non-arbitrary penalty determination were infringed. Petition 123-26. Petitioner’s rights were not violated. Petitioner raised a similar error claim in his AOBat pages 144-63. However,Petitioner did not mention the Fifth, Sixth, Eighth, or Fourteenth Amendmentsor offer any argumentthat the testimony impacted his rights to due process, the proper application of state evidentiary rules, confrontation, or non-arbitrary penalty determination. As such, these theories are unexhausted and mustbedeleted,lest the entire petition should be dismissed. Jefferson v. Budge, 419 F.3d at 1016; Carriger v. Lewis, 971 F.2d at 333-34; Pappageorge v. Sumner, 688 F.2d at 1294. During the meet and confer process, Petitioner argued that: the claim was federalized in the cumulative error section of the AOB at pages 179-182. Joint Statement Regarding Claim Exhaustion 22 Cox v. Warden, 2:04-cv-00065 MCE CKD 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 30 of 47 Respondentdisagrees that borrowing language from other discrete claims is fair presentation. Fields v. Waddington, 401 F.3d at 1021; Castillo v. McFadden, 399 F.3d at 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. In addition, the state high court analyzed Petitioner’s cumulative error claim as one involving purely state law. People v. Cox, 30 Cal.4th at 961-63. Petitioner failed to properly federalize his claim in state court. These references were simply not fairly presented and remain unexhausted here. Fields v. Waddington, 401 F.3d at 1021; Castillo v. McFadden, 399 F.3d at 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. CLAIM 31 A. Petitioner’s Position. Claim 31 involvesthe allegation that petitioner was denied his right to be present during a critical stage of the proceeding, when, during deliberations, the jury requested that a portion of the transcript be reread, in violation of the Constitution. Petition, 131. As noted in the Traverse, the claim waspresented to the California Supreme Court in the AOBat pages 164-178, and the ARBat pages 38-42. Further discussion was hadin the Letter Brief, filed March 7, 2002, at page 8. Traverse, 49-50. The respondentasserts that certain “theories are unexhausted and must be deleted,” including but not limited to claims involving the Eighth Amendmentand “to be free of an arbitrary deprivation of a state law entitlement, to confrontation,to trial by jury, and to a non- arbitrary sentencing determination.” Answer, 190. Respondent admits that a “similar error claim” wasraised in the direct appeal. Answer, 190. In addressing respondent’s crabbed approach,it should be noted that the claim in the petition alleges that the “convictions and sentence are unlawfully and unconstitutionally imposed,in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, because petitioner, his counsel, and even the trial court were absent from critical proceedings during which important testimony wasreread to the jury during deliberations.” Petition, 131. The petition alleges that the purported waiverofpetitioner’s presence was inadequate and ineffective. The procedure violated a state statutory directive which Joint Statement Regarding Claim Exhaustion 23 Cox v. Warden, 2:04-cv-00065 MCE CKD o ~ ~ s s D D 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 31 of 47 constituted an arbitrary deprivation of a state law entitlement, in abrogation of petitioner’s federal due process rights. The reread to the jury included prejudicial testimony that the court had previously directed not be disclosed to the jurors, and which would have been objected to and excluded had counsel been present. Finally, the petition alleges that this was structuralerror, denying petitioner fair and reliable verdicts. Petition, 131. In the state court briefing, appellate counsel raised this claim primarily as a denial of a state statutory right and ofhis federal rights to presence,to a fair trial, due process and the effective assistance of counsel underthe Fifth, Sixth, and Fourteenth Amendmentsandthe California Constitution. See, e.g., AOB at 164, 175, 178. Such are the fundamental aspects of this claim. But the claim also inherently invokes the Eighth Amendment. First, the state court briefing referred to the Eighth Amendment elements -- including the right to a non-arbitrary sentencing determination -- in the citations to Burger v. Kemp ,483 U.S. 776 (1987), Proffitt v. Wainwright, 685 F.2d 1227 (11" Cir. 1982)(see AOB, page 177; ARB 41- 42) and Hall v. Wainwright, 733 F.2d 766, 775 (11th Cir. 1984) (see AOB 177) andin the extensive discussion of Bustamante v. Eyman, 456 F. 2d 269, 273-275 (9th Cir. 1972) (see AOB page 174-177). In quoting from Bustamante, appellate counsel argued, “The defendant’s right to be presentat all proceedings ofthe tribunal which maytakehis life or liberty is designed to safeguard the public’s interest in a fair and orderly judicial system.” (See AOB 177.) Petitioner’s right to be free of an arbitrary deprivation of a state law entitlement was raised in the discussion of Hopt v. Utah, 110 U.S. 574, 578 (1884) (see AOB 174-175,e.g. “That which the law makesessential in proceedings involving the deprivationoflife or liberty cannot be dispensed with or affected by the consent of the accused; muchless by his mere failure, when on trial and in custody, to object to unauthorized methods.’’) Petitioner’s right to confrontation andto trial by jury was also addressed within the discussion of Bustamante v. Eyman, 456 F.2d at 272 [“In Illinois v. Allen, 397 U.S. 337, 338, 90 ... (1970), the Court emphasized that ‘Oneofthe most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial.”}, and in references to Lewis v. United States, 146 U.S. 370, 372-374 (1892) [“Out of Joint Statement Regarding Claim Exhaustion 24 Cox v. Warden, 2:04-cv-00065 MCE CKD e r Ww W L o o C o S N D N M N 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 32 of 47 abundant tendemessfor the right secured to the accused by our Constitution, to be confronted by the witnesses against him, andto be heard by himself or counsel, our court has gone a step further, and held that it must be shownbythe record that the accused waspresent in court pendingthetrial.”] and United States v. Crutcher, 405 F.2d 239, 242 (1968)[“Article II, §2 of the Federal constitution and the Sixth Amendmentthereto give the defendantin a criminal case the right to a public jury trial, and it is an elementary principle of due process that a defendant must be allowed to be present at his own trial.”](see AOB 174-177). Within the appellate briefing, mention of Badger v. Cardwell, 587 F.2d 968, 970 (9th Cir. 1978) [“Morerecently, the Supreme Court hasstated that the confrontation clause of the Sixth Amendmentguaranteesthe right of an accused to be present not only whenever testimonyis taken, Snyder, supra, 291 U.S. at 102, 54 S.Ct. 330, but ‘in the courtroom at every stage of his trial.’ Illinois v. Allen, 397 U.S. 337, 338, . . (1970)"]; Hall v. Wainwright, 733 F.2d 766, 775 (11th Cir. 1984)[‘Hall urges that his due processrights and his right to confrontation were violated by his absence during” various stages of the proceedings]; Near v. Cunningham,313 F.2d 929, 932 n.1 (4th Cir. 1963)[“the cases cited in the margin, while by no means exhausting the authorities, sufficiently illustrate and amply sustain the proposition that the rightis fundamental and assures him who stands in jeopardy that he may in person,see, hear and know all that is placed before the tribunal having powerbyits finding to deprive him ofliberty or life’”]; and Blackwell v. Brewer, 562 F.2d 596, 599 (8th Cir. 1977) [“Ondirect appeal to the Iowa Supreme Court, Blackwell made arguments similar to those presented in federal court on his habeaspetition - that his exclusion from the voir dire examination of the jury deprived him ofthe constitutional right, guaranteed by the sixth amendment to the Constitution, to confront the witnesses against him... .”]; evidenced a confrontation element to the claim. AOB 177-178. Additionally, reliance upon Fisher v. Roe, 263 F.3d 906 (9th Cir. 2001) in the March7, 2002 Letter Brief indicates the federal constitutional facets to this claim, including the right to confrontation andtrial by jury. In Fisher, the Ninth Circuit set forth the impact of the denial of Joint Statement Regarding Claim Exhaustion 25 Cox v. Warden, 2:04-cv-00065 MCE CKD 0 © Y D D B n N F F W D N Y R O e r a S e S l l Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 33 of 47 counsel’s presence during a jury readback: If present and participating, Fisher and Collins or their lawyers could have made certain, where appropriate, that testimony of defense witnesses wasread as well as that of the state’s witnesses. They could also have ensured that any cross- examination of prosecution witnesses would be read in addition to direct testimony. They could also have madecertain that the court reporter’s notes were accurate, that her notes accurately reflected the witnesses’ testimony, and that she did not unduly emphasize any part of the requested testimony or use any improper voice inflections. ... 263 F.3d at 915. The focusofthe instant claim is on the prejudice wrought by petitioner and counsel’s absence during the jury readback. The discussion within the state court briefing was amplified in the “cumulative” section X, at pages 179-182. See, Claims 23 and 24, supra. There, the brief notes that the issues previously discussed, including the re-reading of testimony “in the absence of counsel and the defendantis itself error of federal constitutional dimension”, AOB 180, “deprived appellant ofhis right to a fundamentally fair trial under the constitutional guarantee of due process of law” and specifically cites the Fifth Amendment and the Fourteenth Amendment as well as Moorev.Illinois, 408 U.S. 786 (1972) and other federal cases. AOB, 179. The brief goes on to discuss the due process clause of the Fourteenth Amendment, fundamentalfairness, and federal opinions at page 181-182, and incorporates the importanceof increased reliability for capital cases -- the Eighth Amendmentaspect -- by citing People v. Hogan, 31] Cal.3d at 848. Asnoted, the California Supreme Court was awarethat this was a capital case. Petitioner’s state counsel raised the federal constitutional aspects of the claim through specific citations to the federal Constitution and specific citations of federal opinions. The state court had a fair opportunity to act on the claim. Davis v. Silva, 511 F.3d at 1009. The claim is exhausted. B. Respondent’s Position - Absence from reread of testimony. Petitioner arguesthat his Fifth, Sixth, Eighth, and Fourteenth Amendmentrights were violated by his absence during a jury reread of testimony. Petitioner contends that as a result his rights to be free of an arbitrary deprivation of a state law entitlement, to be presentat all critical proceedings, due process,a fair trial, confrontation, trial by jury, effective assistance, and a Joint Statement Regarding Claim Exhaustion 26 Cox v. Warden, 2:04-cv-00065 MCE CKD O o f o S I D H A F F W Y L Y D B N O B e R e e e P e l l L lU hD h l L l l r Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 34 of 47 non-arbitrary sentencing determination were infringed. Petition 131. Petitioner’s rights were not violated. Petitioner raised a similar error claim in his AOBat pages 164-78. However, Petitioner did not offer any argumentthat his rights under the Eighth Amendment,to be free of an arbitrary deprivation of a state law entitlement, to confrontation, to trial by jury, and to a non-arbitrary sentencing determination were infringed. As such, these theories are unexhausted and must be deleted, lest the entire petition should be dismissed. Jefferson v. Budge, 419 F.3d at 1016; Carriger v. Lewis, 971 F.2d at 333-34; Pappageorge v. Sumner, 688 F.2d at 1294. During the meet and confer process, Petitioner argued that: the claim was federalized at AOBpages 171-177 in citations to Burger v. Kemp, 483 U.S. 776 (1987); Hopt v. Utah, 110 U.S. 574, 578 (1884); Bustamonte v. Eyman, 456 F.2d 269, 274-75 (9th Cir. 1972); and Lewisv. United States, 146 U.S. 370, 373-79 (1892) and that the Eighth Amendment aspect was presented in the direct appeal reply brief (ARB)at pages 41-42. The passing reference to the cited cases,failed to fairly present the Eighth Amendment, arbitrary deprivation of a state law entitlement, confrontation, trial by jury, or non-arbitrary sentencing determination nature of the claim. It is simply not fair presentation to fail to mention the operative theories in the state pleading and expect the state high court to search through the myriad of case citations and speculate that Petitioner meant to assert matters not stated plainly by heading or within the bodyofthe pleading. In addition, the California Supreme Court interpreted Petitioner’s claim as based solely upon due process. People v. Cox, 30 Cal.4th at 963. These added references were simply not fairly presented and remain unexhausted here. Fields v. Waddington, 401 F.3d at 1021; Castillo v. McFadden, 399 F.3d at 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. CLAIM 32 A. Petitioner’s Position. Claim 32 involves the misconduct committed by the prosecutor in the penalty phase argument, whereby he evoked highly emotional images which wereirrelevant to the sentencing Joint Statement Regarding Claim Exhaustion 27 Cox v. Warden, 2:04-cv-00065 MCE CKD o O C o m s D H 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 35 of 47 factors and prejudicialto petitioner’s right to a fair and non-arbitrary sentencing determination. The claim wasasserted in pleadings during the state court appeal: The claim waspresented in the AOB,at pages 202-206, and Appellant’s Letter Brief, filed March 7, 2002, at page 10. Traverse, at 51. Nonetheless, respondent complainsthat petitioner “has not exhaustedportions ofthis claim.” Answer, 18. Respondent maintains: “Petitioner did not offer any argument that his rights under the Fifth or Sixth Amendments,or to a non-arbitrary sentencing determination were infringed. As such these additionaltheories are unexhausted...” Answer, 194. Respondent goes on to rely upon a lengthy quotation from the California Supreme Court analysis ofthis supposedly unexhausted claim. Answer, 195. Claim 32 wasraised in Appellant’s Opening Brief as Issue XIV. The discussion there emphasizes the Eighth and Fourteenth Amendments, including the non-arbitrary sentencing determination which is an inherent element of the Eighth Amendment. See, e.g. Eddingsv. Oklahoma, 455 U.S. 104 (1982); Woodson v. North Carolina, 428 U.S. 280 (1976). AOB at 203-205. Additionally, contrary to respondent’s assertion, state counsel raised the Fifth and Sixth Amendments aspects in the references to various federal cases. The briefing specifically cites a line of cases addressing the Sixth Amendment. The references to Booth v. Maryland, 482 U.S. 496 (1987) in the AOB(at page 208)andin the Letter Brief (at page 10), raised petitioner’s Sixth Amendmentright to confrontation. The essence ofBooth is that victim impact testimony impinges upon a defendant’s right to challenge the impact of the loss of a loved oneto the victim’s family. See, 482 U.S. at 506. The appellate briefing noted that“If there is no evidence produced,asis true in the instant case, then the prosecutor’s argumentrests on improper speculation and appeal to emotion.” Letter Brief of March 7, 2002 at 10. Similarly, the quotation from Hancev. Zant, 696 F.2d 940, 952-953, (9th Cir. 1983) cited in the briefing, that a “dramatic appeal to gut emotion [which]hasno place in the courtroom,especially in a case involving the penalty of death,” AOB at 204, focused the issue that when the prosecutoracts as an unsworn witness, the defendant is denied his right to confrontation. Joint Statement Regarding Claim Exhaustion 28 Cox v. Warden, 2:04-cv-00065 MCE CKD w n & W w W N oO o O o S D 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 36 of 47 Caldwell v. Mississippi, 472 U.S. 320, 341 (1985), which wasalso briefly mentioned in the appellate briefing, is the quintessential case for the integral nature ofthe jury’s role in sentencing in a capital case: “In this case, the State sought to minimize the jury’s sense of responsibility for determining the appropriateness of death.” Thus, petitioner fairly presented the substance ofthe claim, the federal basis ofthe claim, and the need for heightenedreliability in a capital case, non-arbitrary sentencing, due process of law, and the Sixth Amendmentguarantees to the California court. The claim is exhausted. B. Respondent’s Position - Prosecutorial Misconduct Penalty phase argument. Petitioner argues that his Fifth, Sixth, Eighth, and Fourteenth Amendmentrights were violated by the prosecutor’s penalty phase argument becauseit appealed to the jury’s passions. Petitioner contendsthat as a result his rights to due process,a fair trial, and a non-arbitrary sentencing determination were infringed. Petition 132. Petitioner’s rights were notviolated. Petitioner raised a similar error claim in his AOB at pages 202-06. However, Petitioner did not offer any argumentthat his rights under the Fifth or Sixth Amendments,or to a non-arbitrary sentencing determination were infringed. As such, these theories are unexhausted and must be deleted, lest the entire petition should be dismissed. Jefferson v. Budge, 419 F.3d at 1016; Carriger v. Lewis, 971 F.2d at 333-34; Pappageorge v. Sumner, 688 F.2d at 1294. During the meet and confer process, Petitioner argued that: the federal constitutionalright to a reliable sentencing determination was emphasized in the discussion in AOB pages 203-205 with citation to Eddings v. Oklahoma, 455 U.S. 104, 110-12 (1982). Petitioner’s failure to mention the Fifth or Sixth Amendments, or non-arbitrary sentencing determination did notfairly present those issuesto the state high court. In addition, the state high court interpreted and resolved Petitioner’s claim based solely upon prosecutorial misconduct and due process. People Cox, 30 Cal.4th at 966. These added references were simply not fairly presented and remain unexhausted here. Fields v. Waddington, 401 F.3d at 1021; Castillo v. McFadden, 399 F.3dat 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. Joint Statement Regarding Claim Exhaustion 29 Cox v. Warden, 2:04-cv-00065 MCE CKD 0 f o H T D n A n F P W N Y D O a a m r e e p p e B R R S S e A A A R B H N K CO Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 37 of 47 CLAIM 33 A. Petitioner’s Position. Claim 33 involvesthe trial court’s prohibition of arguments describing the execution of the death penalty. The claim wasraisedin the state court appellate briefing and presentedto the California Supreme Court. The claim waspresented in the AOB at pages 230-239, the ARB at pages 57-59, Appellant’s Letter Brief, filed March 11, 1988, at page 1, and Appellant’s Letter Brief, filed March 7, 2002, at page 17. Traverse, 53. Nonetheless, respondent complainsthat petitioner “has not exhaustedportions ofthis claim.” Answer, 18-19. Respondent maintains: “Petitioner did not offer any argument that his rights under the Eighth or Fourteenth Amendments or due process,a fair trial, and a non-arbitrary sentencing determination were infringed. As such these theories are unexhausted . . .””- Answer, 196. Respondentis in error. The state court pleadings fail to support this mistaken assertion. The federal aspects of the claim, including the Eighth Amendment element, are discussed in pages 232-234 of the AOB, whichincludescitations to the Supreme Court’s capital jurisprudence, including references to Lockett v. Ohio, 438 U.S. 586, 605 (1978), Gregg v. Georgia, 428 U.S. 153 (1976), and Woodson v. North Carolina, 428 U.S. 280 (1976). Similar references werecited in the March 11, 1988, Letter Brief. Moreover, appellant relied upon California v. Brown, 479 U.S. 538 (1987) as a basis for his federal constitutional arguments in support of allowingthe jury to consider the methodof execution in determining whether death was the appropriate penalty. ARB at 57-58. The essenceofthis claim is that the trial court precluded the jury from hearing an account of the torturous punishmentof execution by denying defense counsel from presenting arguments on the nature of an execution and from reading actual accounts of the imposition of the manner in which the death penalty is imposed. The Eighth Amendmentclaim that death by asphyxiation in the gas chamberconstitutes cruel and unusual punishmentperforce implicitly incorporated the Fourteenth Amendment, since the Eighth Amendmentis only applicable to state court proceedingspursuant to the incorporation doctrine underlying the due processclause of the Joint Statement Regarding Claim Exhaustion 30 Cox v. Warden, 2:04-cv-00065 MCE CKD 0 O o N Y D n w n f F Ww W Y Y R O I S e m o r e p p e B S R F&F 8S S F B R I A A R H N H K © Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 38 of 47 Fourteenth Amendment. See Malloy v. Hogan, 378 US.1, 6, n.6 (1964); Robinsonv. California, 370 U.S. 660, 666 (1962). Thus,petitioner fairly presented the substance ofthe claim,the federal basis ofthe claim, and the need for heightenedreliability in a capital case, to the California court. The claim is exhausted. B. Respondent’s Position - Restriction upon defense penalty argument. Petitioner argues that his Eighth and Fourteenth Amendmentrights were violated by the court’s restriction upon defense penalty phase argument regarding the method of execution. Petitioner contendsthat as a result his rights to due process, a fair trial, effective assistance of counsel, full consideration of mitigating evidence, and a non-arbitrary sentencing determination were infringed. Petitioner also argues that he was arbitrarily depriveda state law entitlement. Petition 133-34. Petitioner’s rights were not violated. Petitioner raised a similar error claim in his AOB at pages 230-39. However, Petitioner did not offer any argumentthat his rights under the Eighth or Fourteenth Amendments, due process,a fair trial, or to a non-arbitrary sentencing determination were infringed. As such,these theories are unexhausted and must be deleted, lest the entire petition should be dismissed. Jefferson v. Budge, 419 F.3d at 1016; Carriger v. Lewis, 971 F.2d at 333-34; Pappageorge v. Sumner, 688 F.2d at 1294. During the meet and confer process, Petitioner argued that: the federal aspects of the claim including the Eighth Amendmentaspect were discussed in the AOB at pages 232-34 with citations to Lockett v. Ohio, 438 U.S. 586; Gregg v. Georgia, 428 U.S. 153, 203-04 (1976); and Woodson v. North Carolina, 428 U.S. 280 (1976). Petitioner failed to mention the Eighth or Fourteenth Amendments, or due process, a fair trial, and a non-arbitrary sentencing determination, and thus did not fairly present those issues to the state high court. In addition, the state high court interpreted and resolved Petitioner’s claim based solely uponstate law. People v. Cox, 30 Cal.4th at 969. These added references were Joint Statement Regarding Claim Exhaustion 31 Cox v. Warden, 2:04-cv-00065 MCE CKD & oO o f o N D B W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 39 of 47 simply not fairly presented and remain unexhausted here. Fields v. Waddington, 401 F.3d at 1021; Castillo v. McFadden, 399 F.3d at 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. CLAIM 34 A. Petitioner’s Position. Claim 34 concernsthetrial court’s misleading instruction that the jurors must assumethat a death sentence will result in the imposition ofthe death penalty, yet was unaccompanied by a parallel instruction that the jurors must assumethata life sentence will result in incarceration for one’s naturallife, without the possibility of parole. This claim was presented to the state court in the state court appeal: the AOB at pages 207-214, the ARB at pages 52-53, Appellant’s Letter Brief, filed March 7, 2002, at pages 10-11; and Reply to Attorney General’s Letter Brief, filed April 4, 2002,at page 3. Nonetheless, respondent complainsthatpetitioner “has not exhausted portionsofthis claim.” Answer, 19. Respondent maintains: “However, Petitioner did not offer any argument that his rights under the Eighth Amendmentora reliable individualized penalty verdict, and to be free of improper sentencing considerations were infringed. As such, these theories are unexhausted...” Answer, 198. Respondent’s attemptto parsethis claim into different “theories” is unavailing. The claim is that the trial court’s penalty phase instructionsfailed to assure that the imposition of a death sentence notbeinflicted in an arbitrary or capricious manner. The federal aspects of the claim, including the Eighth Amendmentaspect, is discussed in appellate briefing, which included citations to Gregg v. Georgia, 428 U.S. 153, Furman v. Georgia, 408 U.S. 238, and Caldwell v. Mississippi, 472 U.S. 320. AOBat 212-213. The substance of the claim,andits federal constitutional aspects, were presented to the state court, which had a fair opportunity to rule on the merits. Duncan v. Henry, 513 U.S. at 365-366. Nothing moreis necessary. Moreover, the United States Supreme Court has ruled that instructions that “introduce a level of uncertainty and unreliability into the factfinding process. . . cannotbe tolerated in a capital case.” Beck v. Alabama, 447 U.S. 625, 643 (1980). The constitutional underpinning of Joint Statement Regarding Claim Exhaustion 32 Cox v. Warden,2:04-cv-00065 MCE CKD n n B& B Ww W N O o C o ~T I D H 10 lt 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 40 of 47 the Beck decision is the Due Process Clause. In the AOB,appellate counsel argued: “Further, since the seriously misleading instruction given here is contrary to the rationale of [People v.] Ramos [37 Cal. 3d 136 (1984)], and equally violative of due process, the error must be deemed reversible per se.....” AOB at 209. Petitioner’s counsel expressly referenced the Due Process Clause. The claim wasfairly presented, with the federal constitutional underpinningsidentified, and the California Supreme Court had an opportunity to -- andin fact did -- rule on the claim. The claim is exhausted. B. Respondent’s Position - Due process instructional error failure to instruct that life means life. Petitioner argues that his Eighth and Fourteenth Amendmentrights were violated by the court’s refusal to instruct the jury that life without the possibility of parole meanslife in prison. Petitioner contendsthat as a result his rights to due process,a reliable individualized penalty verdict, and to be free of improper sentencing considerations were infringed. Petition 135. Petitioner’s rights were not violated. Petitionerraised a similar error claim in his AOB at pages 207-14. However, Petitioner did not offer any argumentthat his rights under the Eighth Amendment,orto a reliable individualized penalty verdict, and to be free of improper sentencing considerations were infringed. As such, these theories are unexhausted and must be deleted, lest the entire petition should be dismissed. Jefferson v. Budge, 419 F.3d at 1016; Carriger v. Lewis, 971 F.2d at 333-34; Pappageorge v. Sumner, 688 F.2d at 1294. During the meet and confer process, Petitioner argued that: the federal aspects of the claim are noted in the letter brief filed March 7, 2002, at pages 10-11 andtheletter brief filed April 4, 2002 at page 3. Petitioner failed to mention that his rights under the Eighth Amendment, or a reliable individualized penalty verdict, and to be free of improper sentencing considerations wereinfringed in thoseletter briefs and thus failed to fairly present these theories. In addition, the state high court interpreted and resolved Petitioner’s claim based solely uponstate law. Joint Statement Regarding Claim Exhaustion 33 Cox v. Warden, 2:04-cv-00065 MCE CKD 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 41 of 47 People v. Cox, 30 Cal.4th at 967. These added references were simply notfairly presented and remain unexhausted here. Fields v. Waddington, 401 F.3d at 1021; Castillo v. McFadden, 399 F.3d at 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. CLAIM 35 A. Petitioner’s Position. Claim 35 concernsthetrial court’s failure at the penalty phase to instruct the jury that it could not consider “other crimes” evidence in determining the sentencing verdict unless the jurors found such crimes to have been proven beyond a reasonable doubt. This claim was exhausted as it was presented to the California Supreme Court in the appellate briefing: the AOB at pages 179-189, and the ARB at pages 47-48. Nonetheless, respondent complainsthat petitioner “has not exhausted portionsofthis claim.” Answer, 19. Respondent acknowledgesthat“Petitioner raised a similar error claim.. .” howevermaintains: “Petitioner did not offer any argumentthat his right to be free of an arbitrary deprivation of a state law entitlement was infringed.” Additionally, according to Respondent, “Petitioner omitted any argumentthat his interaction with Joanna could be viewed as other crimes evidence,preferring instead to argue only that the possession of guns and the testimony about sex with the victims could be other crimes evidence. As such these theories are unexhausted...” Answer, 200-201. The focus ofthe instant claim is the trial court’s failure to render an struction regarding other crimes evidence and their prohibition from being considered in aggravation by the jury unless proven beyond a reasonable doubt. The federal aspects of the claim wereraised in the discussion regarding the abridgementof appellant’s constitutional right to a fair andreliable penalty determination and citation to the Eighth Amendment opinion of Lockett v. Ohio, 438 U.S. 586. AOB at 189. The substance ofthe claim, and its federal constitutional aspects, were presented to the state court, which had a fair opportunity to rule on the merits. Duncan v. Henry, 513 U.S. at 365-366. Nothing moreis necessary. Alternatively, any additional evidentiary support cited by petitioner in support of the Joint Statement Regarding Claim Exhaustion 34 Cox v. Warden, 2:04-cv-00065 MCE CKD b h Ww W N O o O o NA N H D W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document113_ Filed 03/19/12 Page 42 of 47 claim,i.e. the reference to argument regarding his interaction with Joanna, did not fundamentally alter the claim and, therefore, the claim is properly exhausted. Petitioner presented the substance of his claim to the state court. See, e.g., Vasquez v. Hillery, 474 U.S. 254, 257-58, 260 (1986) (rejecting challenge to new evidence becauseit did not fundamentally alter the legal claim the state courts previously considered.) Petitioner’s state briefing raised more than a claim to a state law entitlement. “While the petitioner must refer to federal law in state court explicitly, exhaustion is satisfied once the petitioner makesthat explicit reference even if the petitioner relies predominantly on state law before the state courts.” Insyxiengmay v. Morgan, 403 F.3d at 658. The claim is exhausted. B. Respondent’s Position - Failure to instruct that other crimes must be shown beyond a reasonable doubt. Petitioner argues that his Sixth, Eighth, and Fourteenth Amendmentrights were violated by the court’s failure to instruct that other crimes evidence must be shown beyond a reasonable doubt before it can be considered in aggravation. Petitioner contendsthat as a result his right to be free of an arbitrary deprivation of a state law entitlement was infringed. Petition 136-37. Petitioner’s rights were not violated. Petitioner raised a similar error claim in his AOBat pages 183-89. However, Petitioner did not offer any argumentthat his right to be free of an arbitrary deprivation of a state law entitlement was infringed. In addition, Petitioner omitted any argumentthat his interaction with Joanna could be viewed as other crimes evidence, preferring instead to argue only that his possession of guns and the testimony about sex with the victims could be other crimes evidence. Assuch,these theories are unexhausted and mustbe deleted, lest the entire petition should be dismissed. Jefferson v. Budge, 419 F.3d at 1016; Carriger v. Lewis, 971 F.2d at 333-34; Pappageorge v. Sumner, 688 F.2d at 1294. During the meet and confer process, Petitioner argued that: the text at AOB page 189 discusses appellant’s constitutional right to a fair and reliable penalty determination andcites Lockett v. Ohio, 438 U.S. 586. Petitioner failed to argue any due process claim based uponhis Joint Statement Regarding Claim Exhaustion 35 Cox v. Warden, 2:04-cv-00065 MCE CKD O o w~ OA N S D D 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 43 of 47 right to be free from an arbitrary deprivation of a state law entitlement. In addition, Petitioner did not argue that his interaction with Joanna could be viewed as other crimes evidence. Petitioner only argued that the possession of guns and the testimony about sex with the victims could be other crimes evidence. Further, the state high court interpreted and resolved Petitioner’s claim based solely upon state law. People v. Cox, 30 Cal.4th at 964. These added references were simply notfairly presented and remain unexhausted here. Fields v. Waddington, 401 F.3d at 1021; Castillo v. McFadden,399 F.3d at 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. CLAIM 39 A. Petitioner’s Position. Claim 39 concerns thetrial court’s erroneous response to the jury’s request at the sentencing phase for further information concerning Dr. Edwards’sreport. The claim was exhausted as it was presented to the California Supreme Court in the state appellate briefing: AOB,at pages 220-229, and the ARB,at pages 54-56. Respondent maintains that petitioner “raised a similar error claim in his direct opening brief.” Answer, 213. Nonetheless, respondent complains that “[pJortions of this claim are unexhausted.” Answer, 20. Respondent maintains: “However, Petitioner did not offer any argument regarding an arbitrary deprivation of a state law entitlement. Assuch,this theory is unexhausted...” Answer, 213. Onceagain, the state court record refutes respondent’s assertions. This claim began as Issue XVII in the AOB. The appellate brief argued that the court’s failure to properly respondto the jury’s requestfor information violated the due processright to a fair jury trial, and cited to the Sixth and Fourteenth Amendments to the United States Constitution. AOB 225-226. This argument was expanded uponin the brief: To the extent that the jurors, or any ofthem, were prevented by the jury’s actions from accurately recalling such evidence regarding Dr. Edwards’ report, they were unable to give ““independent mitigating weight’ to all relevant evidence proffered by the defendantfor that purpose,’”thereby “‘creat[ing] the risk that the death penalty [was] imposedin spite of factors which maycallfor a less severe Joint Statement Regarding Claim Exhaustion 36 Cox v. Warden, 2:04-cv-00065 MCE CKD i o fe o S S D D 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 44 of 47 penalty.”” Such a risk “‘is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.’” (People v. Brown (1985) 40 Cal. 3d 512, 539, quoting Lockett v. Ohio, supra, 438 U.S.at p. 605.) AOBat 228. Thearbitrary deprivation of the state law entitlement is a componentofthe violation of due process. “While the petitioner must refer to federal law in state court explicitly, exhaustion is satisfied once the petitioner makesthat explicit reference even if the petitioner relies predominantly on state law before the state courts.” Insyxiengmay v. Morgan, 403 F.3d at 658. The claim is exhausted. B. Respondent’s Position - Error regarding the jury’s request for information. Petitioner argues that his Sixth, Eighth, and Fourteenth Amendmentrights were violated bythe court’s failure to properly respondto the jury’s request for information. Petitioner contends that as a result his rights to jury trial, due process, a fair trial and an individualized sentencing determination were infringed. Petitioner also contends that he wasarbitrarily deprived of a state law entitlement. Petition 143-44. Petitioner’s rights were not violated. Petitioner raised a similar error claim in his AOB at pages 220-29. However,Petitioner did not offer any argument regarding an arbitrary deprivation of a state law entitlement. As such, this theory is unexhausted and mustbe deleted, lest the entire petition should be dismissed. Jefferson v. Budge, 419 F.3d at 1016; Carriger v. Lewis, 971 F.2d at 333-34; Pappageorgev. Sumner, 688 F.2d at 1294. During the meet and confer process, Petitioner argued that: the arbitrary deprivation of the state law entitlement is a componentofthe violation of due process referenced in the AOBat pages 225-26. Petitioner failed to mention his right to be free of an arbitrary deprivation of a state law entitlement was infringed. Further, the state high court interpreted and resolved Petitioner’s claim based solely upon state law. People v. Cox, 30 Cal.4th at 967-69. The added reference was simply notfairly presented and remains unexhausted here. Fields v. Waddington, 401 F.3d at 1021; Castillo v. McFadden, 399 F.3d at 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. Joint Statement Regarding Claim Exhaustion 37 Cox v. Warden, 2:04-cv-00065 MCE CKD w w a N 10 11 12 13 14 15 16 17 i8 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 45 of 47 CLAIM 49 A. Petitioner’s Position. Claim 49 is a cumulative error claim, with the Petition asserting that the cumulative effect of the manyerrors and constitutional violations deprived petitioner of a fundamentally fair trial proceeding in violation of due process of law and resulted in an unreliable death judgment. Respondentasserts that this claim is unexhausted. Answer, 21, 242. Preliminarily, it is debatable whether a cumulative error claim must be independently exhaustedifthe other errors raised in the petition are themselves exhausted.* Since the Ninth Circuit in Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008), and Solis v. Garcia, 219 F.3d 922 (9th Cir. 2000), appears to have held that a cumulative error claim must be separately and specifically exhausted, petitioner will assume, without conceding,this point. Petitioner’s state counsel asserted a partial “cumulative” error claim in the AOBat pages 179-182, and the ARB at pages 43-46. The AOBspecifically noted the federal constitutional nature ofthe claim, citing the federal due process andfair trial rights, the Fifth and Fourteenth Amendments, and alluding to the heightened reliability requirement of capital cases via the citation to People v. Hogan, 31 Cal.3d at 848. In the ARB,state counsel argued that “[t]he accumulation of the errors in appellant’s trial, which combined to support the prosecution case and to denigrate the defendant, resulted in a fundamentally unfair trial.” ARB 45. The ARB also attempted to incorporate the habeas corpuspetition filed in state court and the assertions raised in that petition. ARB 45-46. In the Traverse to Return to Order to Show Cause, filed November5, 1988, at page 7, state counsel further madethe assertion that: [T]he cumulative effect of these errors is alleged to be prejudicial under the state and federal constitutions. . . [citing the Sixth and Fourteenth Amendments] 7. Petitioner furtheralleges. . that all of the denials of due process and effective assistance of counsel which wereallegedin the petition and are alleged in this traverse [citations to the Sixth and Fourteenth Amendments] . . . individually and in combination, resulted in a death judgment whichis unreliable within the meaning of the Eighth and Fourteenth Amendmentto the Unites States Constitution. 4 Petitioner reserves the right to assert that exhaustion is not required for a cumulative error claim. Joint Statement Regarding Claim Exhaustion 38 Cox v, Warden, 2:04-cv-00065 MCE CKD N O o oO o N Y D H H W E e W 10 nl 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 46 of 47 And, additionally, in the Supplemental Petition for Writ of Habeas Corpusfiled April 6, 1990,at page 5, state counselallegedthat petitioner’s detention under sentence of death was illegal underthe Fifth, Sixth, Eighth and Fourteenth Amendments,incorporating “asif fully set forth herein, all of the allegations and exhibits contained in the traverse filed on November15, 1988, and in thepetition filed on February 8, 1988.” At page 23, the allegations stated that the ineffective assistance of counsel and suppression of evidence claims “have a prejudicial effect, not only in themselves, but also in conjunction with theerrors allegedin the petition. Petitioner must be permitted to show that the cumulative effect of these errors deprived him ofa fairtrial.” A fair and sensible reading of the state court pleadings reveals that the petitioner’s counseldid raise a cumulative error claim and the state court had a fair opportunity to consider the cumulative effect of any errors on the judgment. The claim is exhausted. B. Respondent’s Position - Cumulative error. Petitioner contendsthat claims 5, 8, 10, 22-28, 31, and 40 support an argumentthat he suffered from cumulativeerror in violation of his Fifth, Sixth, Eighth and Fourteenth Amendmentrights. Petition 260. Petitioner has not exhausted this claim andit should therefore be dismissed. Jefferson v. Budge, 419 F.3d at 1016; Carriger v. Lewis, 971 F.2d at 333-34; Pappageorge v. Sumner, 688 F.2d at 1294. During the meet and conferprocess, Petitioner argued that: the cumulative error claim was referenced in the Supplemental Petition for writ of habeas corpusfiled April 6, 1990, at pages 5 and 23. Petitioneralso stated that he was not concedingthat the claim required exhaustion. Those pages simply did notfairly present any cumulative error argument as now advanced. The California Supreme Court merely addressed cumulative evidentiary error arguments advanced byPetitioner below (AOB 179-182). People v. Cox, 30 Cal.4th at 963. There was no cumulative error claim advancedor resolved in the state habeas proceedings. re Cox, 30 Cal.4th 974 (2003). This cumulative error claim was simply notfairly presented and remains unexhausted here. Fields v. Waddington, 401 F.3d at 1021; Castillo v. McFadden, 399 F.3d at 999, 1003; Hiivala v. Wood, 195 F.3d at 1106. Joint Statement Regarding Claim Exhaustion 39 Cox v. Warden, 2:04-cv-00065 MCE CKD 10 iv 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00065-MCE -CKD Document 113 Filed 03/19/12 Page 47 of 47 IV. CONCLUSIONS. A. PETITIONER’S CONCLUSION. Petitioner maintains that all claimsin the petition are exhausted. The Court shouldreject Respondent’s hyper-technical approach as unsupported and unrealistic. However, as notedin the “Reservation of Rights” in the Traverse (page 73), should the Court find that some ofthe claims in the Petition are wholly orpartially unexhausted, petitioner reserveshis rights to request any appropriate actions by this Court. Dismissal ofthe petition, without considering a stay and abeyance procedure orallowing petitioner a chance to amendthe petition, would be improper. King v. Ryan, 564 F.3d 1133, 1140 (9" Cir. 2009); Jackson v. Roe, 425 F.3d 654, 660-662 (9" Cir. 2005). B. RESPONDENT’S CONCLUSION. Based upon the foregoing along with the records before this Court, Respondent respectfully asks that the unexhausted claims and subclaimsbe deletedor the entire petition should be dismissed. Dated: March 19, 2012 Respectfully submitted, DANIEL J. BRODERICK Federal Defender /s/ Lissa J. Gardner LISSA J. GARDNER Assistant Federal Defender TIMOTHYJ. FOLEY Assistant Federal Defender Attomeys for Petitioner MICHAELA. COX Dated: March 19, 2012 Respectfully submitted, KAMALAD. HARRIS... Attomey General of California /s/ R. Todd Marshall Deputy Attorney General Attorneys for Respondent Joint Statement Regarding Claim Exhaustion 40 Cox v. Warden, 2:04-cv-00065 MCE CKD DECLARATION OF SERVICE Re: Inre Reno Case No: $124660 I, the undersigned, declare as follows: I am a citizen of the United States, over the age of 18 years and not a party to the within action; my place of employment and business addressis 819 Delaware Street, Berkeley, CA 94710. On April 20, 2012, I served the attached PETITIONER’S SECOND SUPPLEMENTTO HIS TRAVERSE TO RESPONDENT’S RETURN TO THE SECOND PETITION FOR WRIT OF HABEAS CORPUS AND SUPPORTING EXHIBIT,by placing a true copy thereof in an envelope addressedto the person(s) named below at the address(es) shown,and bysealing and depositing said envelope in the United States Mail at Berkeley, California, with postage thereon fully prepaid. Thereis delivery service by United States Mail at each of the places so addressed, for there is regular communication by mail betweenthe place ofmailing and each of the places so addressed. Robert David Breton & Mary Sanchez Peter Giannini Deputy Attorney Generals 1015 Gayley Avenue, #1000 300 South Spring Street, Suite 1702 Los Angeles, CA 90024 Los Angeles, CA 90013 Reno Michael Millman, Ex. Dir. Box D-63100 California Appellate Project San Quentin State Prison 101 Second Street, Suite 600 San Quentin, CA 94974 San Francisco, CA 94105 I declare under penalty of perjury that the foregoing is true and correct. Signed on April 20, 2012 at Berkeley, California. ‘BRIAN C. McCOMAS
