The opinion of the court was delivered by: Louisa S Porter United States Magistrate Judge
REPORTAND RECOMMENDATION OF UNITED STATES MAGISTRATE AND DENYING IN PART MOTION JUDGE RE GRANTING IN PART TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
This Report and Recommendation is submitted to United States District Judge M. James Lorenz, pursuant to 28 U.S.C. § 636(b) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.
Stephen Floyd Ullrich, (hereinafter "Petitioner"), is an Idaho state prisoner proceeding pro se and in forma pauperis with a First Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, challenging his 1997 San Diego County Superior Court conviction for petty theft with a prior, entered pursuant to a guilty plea. (Doc. No. 5.) Petitioner initiated this action eight years after he was convicted, and now contends his plea was obtained in violation of his federal due process rights because he was mentally unbalanced when he entered the plea, and because he is actually innocent of the offense to which he pled guilty. (First Amended Petition "FAP" at 6-7.) Respondent Attorney General of the State of California, (hereinafter "Respondent"),*fn1 initially filed a Motion to Dismiss on the grounds that: (1) this action was not filed within the one-year statute of limitations; (2) Petitioner had not exhausted his state court remedies with respect to either claim presented in the FAP; and (3) Petitioner's status as a fugitive warrants dismissal under the fugitive disentitlement doctrine. (Doc. Nos. 8-9.) Respondent lodged portions of the state court record in support of the Motion (Doc. No. 10), and Petitioner filed an Opposition (Doc. No. 11).
On January 12, 2006, the undersigned Magistrate Judge issued a Report and Recommendation finding that Petitioner was a fugitive who did not satisfy the "in custody" requirement of 28 U.S.C. § 2254, and, alternately, that the FAP was time-barred, and that Petitioner had failed to exhaust his state court remedies. (Doc. No. 12.) The Magistrate Judge therefore recommend that Respondent's Motion to Dismiss be granted.
Petitioner filed Objections to the Report and Recommendation along with a "Motion to Attach Facts," setting forth arguments and allegations which had not been presented in opposition to the Motion to Dismiss. (Doc. Nos. 14-15) On July 3, 2006, United States District Judge M. James Lorenz granted Petitioner's Motion to Attach Facts, and remanded with instructions to reconsider the Motion to Dismiss in light of Petitioner's new arguments, after providing both parties with an opportunity for additional briefing. (Doc. No. 16.)
Petitioner thereafter filed an Amended Opposition to the Motion to Dismiss. (Doc. No. 20.) Respondent filed a Reply to Petitioner's Amended Opposition, along with the declaration of Susan Volsky. (Doc. Nos. 22-23.) Petitioner filed a Surreply. (Doc. No. 26.)
For the following reasons, the Court finds that Petitioner's claims are exhausted, that the fugitive disentitlement doctrine should not be applied here, and that this action is untimely. Accordingly, the Court recommends that Respondent's Motion to Dismiss be GRANTED in part and DENIED in part, and that the Petition be DISMISSED with prejudice as untimely.
On March 5, 1997, Petitioner entered a guilty plea to petty theft with a prior theft-related conviction, in violation of California Penal Code §§ 484 and 666. (Lodgment No. 1 at 1-2.) On April 10, 1997, Petitioner was sentenced to 365 days in custody of the County Sheriff, to be followed by three years of formal probation, and received two fines which were converted into an additional 16 days of custody to run concurrent with the jail sentence. (Lodgment No. 2 at 1.) Petitioner's probation was revoked for "failure to appear" on November 6, 1998, after his arrest in Idaho where he has remained incarcerated, and a bench warrant was issued which remains outstanding. (Lodgment No. 3.)
Petitioner challenged his conviction in a habeas petition filed in the state supreme court on June 2, 2004. (Lodgment No. 4.) He sought habeas relief in that court on the same basis set forth in a motion to withdraw his guilty plea, which he contended he had mailed to the San Diego County Superior Court at some unstated date but had never received a ruling or even conformation of receipt by that court. (Id. at 3, 11.) Attached to the state supreme court habeas petition is a document which purports to be a copy of the motion to withdraw the plea, which is dated March 8, 2004, but does not contain a file stamp. (Id. at 25-45.) Petitioner claimed in the motion to withdraw his plea that he was incompetent to enter a plea due to diminished capacity, and that federal law provided that he must be allowed to withdraw his guilty plea. (Id.) In the section of the state habeas petition form which asked Petitioner to: "Explain any delay in the discovery of the claimed grounds for relief and in raising the claims in this petition. (See In re Swain (1949) 34 Cal.2d 300, 304.)", Petitioner stated: "Psychological - I did not know I had a felony conviction/and did not know I was on probation." (Id. at 6.)
The California Supreme Court denied the petition on April 20, 2005, with an order which stated: "Petition for writ of habeas corpus is DENIED. (See In re Robbins (1998) 18 Cal.4th 770, 780; In re Swain (1949) 34 Cal.2d 300, 304.) [¶] George, C.J., was absent and did not participate." (Lodgment No. 5.) Petitioner initiated this action on April 28, 2005, the date he handed his federal petition to the prison authorities for mailing to the Court. (See Pet. at 6.)
Respondent moves to dismiss the Petition on the basis it was filed almost seven years after the expiration of the one-year statute of limitations set forth in 28 U.S.C. § 2244(d), arguing that Petitioner is not entitled to statutory or equitable tolling of the statute of limitations. Respondent also contends that both claims presented here are unexhausted, because the actual innocence claim was never presented to any state court, and because the state supreme court's denial of the invalid plea claim with a citation to Swain means the claim was never properly presented to that court. Finally, Respondent contends the FAP should be dismissed under the fugitive disentitlement doctrine due to Petitioner's status as a fugitive.
Petitioner argues that: (1) he has exhausted his claims because he presented them to the state supreme court in his habeas petition but they were ignored; (2) this action is not untimely because he challenged his state conviction within a year of discovering he was on probation, and that he is in any case entitled to tolling of the statute of limitations; and (3) the fugitive disentitlement doctrine should not be applied here since he had been released from custody for fourteen months without being required to report to a probation officer, and his probation was only revoked after his arrest in Idaho on unrelated charges.
A. Petitioner's Claims are Exhausted
Respondent first contends that Petitioner has not exhausted his state court remedies with respect to his claims because he has never presented his actual innocence claim to any state court, and because the invalid plea claim was not properly presented to the state supreme court. (Resp.'s MTD at 3-4.) Petitioner alleges his claims are exhausted by virtue of his presentation of the claims to the state supreme court in the habeas petition he filed in that court. (FAP at 4-7; Pet.'s Opp. at 11.)
The exhaustion of available state judicial remedies is generally a prerequisite to a federal court's consideration of claims presented in habeas corpus proceedings. 28 U.S.C. § 2254(b); see Rose v. Lundy, 455 U.S. 509, 522 (1982); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To satisfy the exhaustion requirement a petitioner must provide the state courts with a "fair opportunity to apply controlling legal principles to the facts bearing upon his [or her] constitutional claim." Anderson v. Harless, 459 U.S. 4, 6 (1982). The exhaustion requirement assures the state courts of the "initial 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)).
In Lyons v. Crawford, 232 F.3d 666 (9th Cir. 2000), as amended 247 F.3d 904 (9th Cir. 2001), the Ninth Circuit articulated two methods a habeas petitioner can use to exhaust a claim in state court: "We hold that a petitioner for habeas corpus relief under 28 U.S.C. § 2254 exhausts available state remedies only if he characterized the claims he raised in state proceedings specifically as federal claims. In short, the petitioner must have either referenced specific provisions of the federal constitution or statutes or cited to federal case law." Id. at 670. The Court left open a third possibility of citation to pertinent state case law which explicitly applies federal law. Id. at 670 n. 3 (emphasis in original). Petitioner satisfied the first two methods when presenting his invalid plea claim to the state supreme court, where he characterized that claim as a federal claim and cited relevant federal authority. (See Lodgment No. 4 at 3 and Ex. 1 at 19-20.) That claim is therefore exhausted. Lyons, 232 F.3d at 670.
Respondent contends that, notwithstanding the fact that Petitioner actually presented the invalid plea claim to the state supreme court, the manner in which the claim was presented renders it unexhausted because Petitioner deprived the state supreme court of the opportunity to address the claim due to the violation of a state procedural rule. (Resp.'s MTD at 3-4.) The state supreme court denied the habeas petition with an order which stated in full: "Petition for writ of habeas corpus is DENIED. (See In re Robbins (1998) 18 Cal.4th 770, 780; In re Swain (1949) 34 Cal.2d 300, 304.) [¶] George, C.J., was absent and did not participate." (Lodgment No. 5.)
Even assuming Respondent is correct that a procedural bar was imposed which precluded the state court from addressing Petitioner's invalid plea claim, the exhaustion requirement would be satisfied if "it is clear that [Petitioner's] claims are now procedurally barred under [state] law." Gray v. Netherland, 518 U.S. 152, 161 (1996) (quoting Castille v. Peoples, 489 U.S. 346, 351 (1989)); Engle v. Isaac, 456 U.S. 107, 125-26 n.28 (1982) (noting that the exhaustion requirement applies "only to remedies still available at the time of the federal petition."); Valerio v. Crawford, 306 F.3d 742, 770 (9th Cir. 2002) (same) (citing Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001) ("the district court correctly concluded that Phillip's claims were nonetheless exhausted because 'a return to state court would be futile.'") (quoting Isaac, 456 U.S. at 125-26 n.28)). "A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer 'available' to him." Cassett v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir. 2005) (quoting Coleman v. Thompson, 501 U.S. 722, 732 (1991)), cert. denied, 126 S.Ct. 1336 (2006).
Respondent contends that state remedies remain available to Petitioner in the form of a new habeas petition in the state supreme court wherein he establishes good cause for the delay under In re Robbins, 18 Cal.4th 770, 780 (1998). (Resp.'s Reply to Amended Opp. at 7 n.4.) Respondent also contends the citation to Ex parte Swain, 34 Cal.2d 300, 304 (1949), in denying Petitioner's invalid plea claim indicates that Petitioner is free to file a new habeas petition in the state supreme court in which he presents his invalid plea claim with more specificity. (Id.) However, the citations to Robbins and Swain by the state supreme court, and in particular the reference to the specific pages of those opinions, clearly indicates that Petitioner's claims were untimely and that he had failed to adequately explain his delay in presenting the claims. See Robbins, 18 Cal.4th at 780 (setting forth "analytical framework governing our timeliness determinations."); Swain, 34 Cal.2d at 304 ("We are entitled to and we do require of a convicted defendant that he allege with particularity the facts upon which he would have a final judgment overturned and that he fully disclose his reasons for delaying in the presentation of those facts.") (emphasis added). The form habeas petition used by Petitioner in the state supreme court contained a section where Petitioner was required to: "Explain any delay in the discovery of the claimed grounds for relief and in raising the claims in this petition. (See In re Swain (1949) 34 Cal.2d 300, 304.)" (Lodgment No. 4 at 6.) Petitioner stated in response: "Psychological - I did not know I had a felony conviction/and did not know I was on probation." (Id.) Petitioner's invalid plea claim was presented in that petition with a great deal of particularity and with citations to relevant federal law, rendering it unlikely the state court was referring to that aspect of Swain invoking the particularity requirement. (Id. at 3 and Ex. 1 at 19-21.)
However, even if the reference to Swain was intended to refer to the particularity requirement, it is clear the claims were also rejected as untimely. Petitioner's excuse for delay in presenting his claims to the state court under Swain was rejected by the state court with a citation to the same page of the Swain opinion as set forth in the form petition requesting an explanation for any delay, and was also rejected with a citation to that portion of the Robbins opinion which deals with timeliness. Thus, irrespective of whether Petitioner properly presented his invalid plea claim in the state habeas petition, it is clear such a claim is now time-barred, and he has therefore met the technical requirement for exhaustion as to that claim. Cassett, 406 F.3d at 621 n.5. With respect to Petitioner's actual innocence claim, the record does not support Petitioner's allegation that he presented that claim to the state supreme court in the habeas petition. However, it is clear that Petitioner no longer has state court remedies available to him with respect to this claim because it is procedurally barred as untimely for the same reason the invalid plea claim is now barred as untimely. Id. The Court therefore finds that Petitioner's claims are exhausted, and recommends denying Respondent's Motion to Dismiss in part to the extent it seeks dismissal of the Petition on the basis that the claims are unexhausted.
B. The Fugitive Disentitlement Doctrine Should Not Bar This Action
Respondent contended in the Motion to Dismiss that this action should be dismissed on the basis that Petitioner is a fugitive. (Resp.'s MTD at 2-3.) Petitioner argued in opposition that although he is technically a fugitive, it is unfair to dismiss this action on that basis because he is a fugitive only due to the imposition of an unconstitutional conviction, and because he only learned that he was on probation after he was incarcerated in Idaho. (Pet.'s Opp. at 7.) In his Objections to the R&R, Petitioner contended that he never escaped from custody, because during the fourteen months between his release from San Diego County Jail in August of 1997 and his arrest in Idaho in November 1998, he was not subject to any probation reporting requirements whatsoever, and that despite the fact that he never reported during that period his probation was only violated after his Idaho arrest. (Pet's Obj. to R&R at 3-5.)
In the Order remanding for further briefing on this issue, District Judge Lorenz noted that "Petitioner does not describe the circumstances when he learned he was subject to probation, the date when he discovered this fact, and the reasons for the delay in discovering it." (7/3/06 Order at 5.) Judge Lorenz also found that because Petitioner did not have access to the pertinent state court records, Respondent should serve Petitioner with the exhibits attached to the Notice of Lodgment in this action, that Petitioner should be allowed to amend his opposition brief in light of those documents, and that the parties should brief the applicability of the fugitive disentitlement doctrine under Degen v. United States, 517 U.S. 820, 823 (1996). (Id.)
Petitioner now contends that Respondent should bear the burden of establishing that Petitioner was aware he was on probation when he left California. (Amended Opp. at 4-5.) Respondent replies that consideration of the equities as set forth in Degen counsel in favor of dismissal because: (1) it would be difficult to produce Petitioner if an evidentiary hearing is held and difficult to provide him relief; (2) it would be unfair to allow Petitioner to challenge his conviction without having to answer for his probation violation, which might result in imposition of a three-year term of imprisonment; (3) dismissing the action would deter others from absconding from probation; (4) the passage of time makes it difficult ...