Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE [DOCKET NO. 8]
JACQUELINE CHOOLJIAN, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Andrew J. Guilford, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I. SUMMARY
On April 16, 2013, Hakeem L. Loice ("petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (the "Petition") with attached pages ("Petition Att."), challenging his 2011 conviction for attempted murder and assault by means likely to produce great bodily injury. Petitioner claims: (1) the trial court denied petitioner due process by refusing to sever the charges against petitioner as they concerned two separate crimes, involved different victims, and occurred on different days (claim 1); and (2) the prosecutor engaged in misconduct, denying petitioner his right to a fair trial by: (a) delaying turning over evidence to the defense (claim 2a); (b) eliciting false testimony from one of the victim witnesses that the victim was relocated after he cooperated with police because he feared retribution from petitioner (claim 2b); and (c) misstating the evidence during closing argument (claim 2c). (Petition at 5; Petition Att. 11-17).
On May 20, 2013, respondent filed a Motion to Dismiss the Petition ("Motion to Dismiss" or "MTD") arguing that claim 2c was not presented to the California Supreme Court and is unexhausted, rendering the Petition "mixed" and subject to dismissal. (MTD at 2). Respondent concurrently lodged multiple documents ("Lodged Doc.") including the petition for review submitted by petitioner to the California Supreme Court on direct appeal ("Petition for Review"). (Lodged Doc. 6).
On June 3, 2013, petitioner filed an opposition ("Opposition") to the Motion to Dismiss, asserting that claim 2c was presented in the Petition for Review. (Opposition at 2). Petitioner incorrectly avers that page 9 of the Petition for Review asserts "that the prosecutor engaged in prejudicial misconduct by... misstating the evidence... during closing argument." (Opposition at 2) (erroneously citing as page 9 of the Petition for Review, page 9 of Exhibit A to the Petition for Review (the Court of Appeal opinion)).
For the reasons explained below, this Court concludes that the Petition is "mixed" and that the Petition should be dismissed and judgment entered accordingly, unless petitioner amends the Petition to delete claim 2c by the deadline to file objections to this Report and Recommendation, or otherwise notifies the Court that he abandons/voluntarily dismisses such claim.
II. PROCEDURAL HISTORY
On June 20, 2011, a Los Angeles County Superior Court jury convicted petitioner of one count of attempted murder and one count of assault by means likely to produce great bodily injury. (Lodged Doc. 1). On August 3, 2011, the trial court sentenced petitioner to an aggregate term of fifty years to life in state prison. (Lodged Doc. 1; Lodged Doc. 5 at 6).
On July 6, 2012, the Court of Appeal affirmed the conviction in a reasoned decision. (Lodged Doc. 5).
Petitioner thereafter filed the Petition for Review in the California Supreme Court raising only claims 1, 2a and 2b. (Lodged Doc. 6). On September 12, 2012, the California Supreme Court denied review without comment. (Lodged Doc. 7).
Petitioner did not file any state habeas petitions. (Petition at 3).
III. DISCUSSION
A. Pertinent Law
As a matter of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in the petition. See O'Sullivan v. Boerckel , 526 U.S. 838, 844 (1999) ("Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief."); see also Rose v. Lundy , 455 U.S. 509, 518-22 (1982); Park v. California , 202 F.3d 1146, 1150 (9th Cir.), cert. denied, 531 U.S. 918 (2000).
Title 28, United States Code, section 2254(b)(1), explicitly provides that a habeas petition brought by a person in state custody shall not be granted unless it appears that:
(A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
State remedies have not been exhausted unless and until the petitioner's federal claims have been fairly presented to, and disposed of on the merits by the highest court of the state. See Baldwin v. Reese , 541 U.S. 27, 29 (2004); James v. Borg , 24 F.3d 20, 24 (9th Cir.), cert. denied, 513 U.S. 935 (1994). A claim has not been fairly presented unless the petitioner has described in the state court proceedings both the operative facts and the federal legal theory on which his claim is based. Duncan v. Henry , 513 U.S. 364, 365-66 (1995); Anderson v. Harless , 459 U.S. 4, 6 (1982); Weaver v. Thompson , 197 F.3d 359, 364 (9th Cir. 1999).
The petitioner has the burden of demonstrating that he has exhausted available state remedies. See Lambert v. Blackwell , 134 F.3d 506, 513 (3d Cir. 1997), as amended (1998) (habeas petitioner carries burden of proving exhaustion of all available state remedies) (citation omitted), cert. denied, 532 U.S. 919 (2001); Olson v. McKune , 9 F.3d 95 (10th Cir. 1993) (state prisoner bringing a federal habeas corpus action bears burden of showing that he has exhausted available state remedies) (citation and quotation marks omitted).
B. Analysis
As noted above, the Petition for Review contains only claims 1, 2a and 2b. Although petitioner argues that he raised claim 2c by reference to Exhibit A to his Petition for Review - the Court of Appeal opinion - petitioner did not specifically or fairly raise claim 2c in the Petition for Review itself. (Lodged Doc. 6). Even assuming that incorporation of the Court of Appeal opinion by reference would constitute fair presentation of all claims contained therein - the Petition for Review merely references such document, but does not purport to incorporate all of the arguments contained therein. (Lodged Doc. 6 at 1). Thus, petitioner has not fairly presented claim 2c to the California Supreme Court.
The exhaustion requirement may be satisfied if a petitioner's unexhausted claim is clearly procedurally barred under state law. See Castille v. Peoples , 489 U.S. 346, 351-52 (1989); Johnson v. Zenon , 88 F.3d 828, 831 (9th Cir. 1996). In this case, however, it is not "clear" that the California Supreme Court would deem petitioner's unexhausted claim procedurally barred under state law if he were to raise it in a habeas petition in the California Supreme Court. See In re Harris , 5 Cal.4th 813, 825 (1993) ("[H]abeas corpus has become a proper remedy in this state to collaterally attack a judgment of conviction which has been obtained in violation of fundamental constitutional rights.") (citations omitted); People v. Sorenson , 111 Cal.App.2d 404, 405 (1952) (claims that fundamental constitutional rights have been violated may be raised by state habeas petition). This Court expresses no opinion regarding whether consideration of a state habeas petition might be foreclosed by the principles discussed in In Re Clark , 5 Cal.4th 750, 763-87 (1993). The California Supreme Court should evaluate the matter in the first instance. Even if an applicable state procedural bar exists, the California Supreme Court nevertheless might choose to reach the merits of petitioner's unexhausted claim. See, e.g., Park , 202 F.3d at 1151-52.
In light of the foregoing, petitioner has failed to meet his burden to demonstrate that claim 2c has been exhausted and the Court therefore concludes that such claim is unexhausted.
C. Disposition of "Mixed" Petitions
Because the Petition contains exhausted claims, as well as an unexhausted claim, and is therefore "mixed, " the Court must further assess the appropriate disposition of the Petition as a whole. A district court generally must dismiss mixed habeas corpus proceedings, that is, proceedings which raise both exhausted and unexhausted claims. Rose , 455 U.S. at 522. However, a court may not dismiss a mixed petition without first permitting the petitioner the opportunity to amend the petition to delete the unexhausted claim. Jefferson v. Budge , 419 F.3d 1013, 1015-16 (9th Cir. 2005) (citations omitted). Petitioner is being provided with such an opportunity by virtue of this ruling. Accordingly, unless petitioner amends the Petition to delete claim 2c ( i.e., his claim that the prosecutor engaged in misconduct by misstating evidence during closing argument) by the deadline to file objections to this Report and Recommendation, the Petition should be dismissed and judgment entered accordingly.
IV. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Judge issue an Order: (1) approving and accepting this Report and Recommendation; and (2) granting the Motion to Dismiss to the extent it seeks dismissal of the Petition as "mixed, " dismissing this action and entering Judgment accordingly unless petitioner amends the Petition to delete claim 2c - the claim that the prosecutor engaged in misconduct by misstating evidence during closing argument - or otherwise notifies the Court that he abandons/voluntary dismisses claim 2c by the deadline to file objections to this Report and Recommendation.
(PROPOSED)
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus by a Person in State Custody (the "Petition"), the Motion to Dismiss the Petition and all documents submitted in conjunction therewith and in opposition thereto, and all of the records herein, including the attached Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"). The Court approves and accepts the Report and Recommendation.
IT IS ORDERED that, as the Petition is "mixed, " and as petitioner has not amended the Petition to delete his unexhausted claim that the prosecutor engaged in misconduct by misstating evidence during closing argument (enumerated as claim 2c in the Report and Recommendation) by the deadline to file objections to the Report and Recommendation, the Motion to Dismiss is granted, the Petition and this action are dismissed without prejudice and Judgment is to be entered accordingly.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Judgment and the Report and Recommendation on petitioner and on counsel for respondent.
IT IS SO ORDERED.