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Hall v. Kramer

July 30, 2008


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge



Petitioner, a state prisoner proceeding through retained counsel, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By order, filed on April 9, 2008, the court deemed the show cause order, filed on March 21, 2008, discharged. Therein, noting, inter alia, that petitioner's counsel had not filed a notice of substitution of counsel, the court found it evident that counsel intended to continue his representation of petitioner. Petitioner's counsel was granted a two-week extension of time to file a written opposition, and was directed to notice the motion for hearing, as he had been instructed in the March 21, 2008, show cause order, in consultation with respondent's counsel and the court's courtroom deputy, at the earliest feasible opportunity, the previous hearing date, properly noticed by respondent in the motion to dismiss, filed on February 4, 2008, having been vacated when petitioner failed to file a notice of substitution of counsel or a response to the pending motion.

Petitioner's counsel filed an opposition on April 28, 2008, but did not notice the motion for hearing on the court's calendar, failing to comply fully with the court's order. Having reviewed the papers, the court does not find that oral argument will be needed and deems the matter submitted. The court will not at this time sanction counsel for petitioner for this omission. However, petitioner's counsel, particularly in light of filings by petitioner pro se showing some frustration on his part, must once and for all make clear whether or not counsel intends to continue his representation of petitioner. See Order below.

Amended Petition

Petitioner was convicted of attempting to dissuade a witness (Cal. Penal Code § 136.1(c)(1)); corporal injury of a spouse (Cal. Penal Code § 273.5(a)); assault with a firearm (Cal. Penal Code § 245(a)(2)); violation of a restraining order (Cal. Penal Code § 273.6(a), and two counts of criminal threats (Cal. Penal Code § 422); petitioner was also found guilty of having personally used a firearm in connection with the assault (Cal. Penal Code § 12022.5(a)). Amended Petition (AP),*fn1 p. 4, Motion to Dismiss (MTD), pp. 1-2, Lodged Document 1. Petitioner was sentenced, on April 20, 2005, to a state prison term of eleven (11) years. AP, p. 5; MTD, pp. 1-2, Lod. Doc. 1 at 8-9. Petitioner challenges his conviction/sentence on two grounds: 1) his Sixth Amendment right to confront and cross-examine the witnesses against him was violated when the court permitted the preliminary transcript of (petitioner's wife) Ms. Hall's testimony to be presented in place of her live testimony, "and by admitting such testimony notwithstanding that it was taken subsequent to Ms. Hall's undergoing hypno-therapy" ; 2) denial of Fourteenth Amendment right to due process by admission of prior uncharged acts of domestic violence. AP, pp.4, 8-22.

Motion to Dismiss

Respondent moves for dismissal of the petition as mixed. Respondent concedes that the second claim is exhausted. MTD, p. 4, Lod. Doc. 6. However, as to the first claim (which although petitioner designates this claim as A, the court will designate claim 1), respondent avers that petitioner has failed to exhaust the claim because he has raised additional arguments in support of the claim in this court that were not fairly presented to the state supreme court. MTD, pp. 4-5. Respondent contends that while petitioner did argue in the state supreme court petition that the trial court violated his Sixth Amendment rights by finding the complaining victim unavailable to testify prior taking all reasonable steps to induce witness to testify, i.e., threatening her with incarceration, petitioner did not make the additional arguments now included in the amended petition, that his Sixth Amendment right to confront and cross-examine witnesses was violated because jurors did not see and hear the complaining victim testify, he did not have the opportunity to cross-examine the complaining victim about her hypnosis sessions at the preliminary hearing and the procedures set forth in Cal. Evid. Code § 795 were not followed at the trial. MTD, pp. 4-5, Lod. Doc. 6.

In opposition, petitioner's counsel inexplicably twice sets forth the same lengthy excerpt from the unpublished state court of appeal decision with regard to the underlying facts of this case. Opposition (Opp.), p. 3-5, 8-10. Counsel contends that the preliminary hearing testimony admitted at the trial was the only evidence that was presented against petitioner. Opp., pp. 5, 10. Petitioner correctly identifies the claim that was set before the state supreme court on direct review in the petition for review:

Whether the trial court denied petitioner the right to confront the witness against him in violation of the Sixth Amendment of the United States when it admitted the preliminary-examination testimony of the complaining witness.

Opp., p. 7; see also, respondent's Lod. Doc. 6, petition for review, pp. I, 1, 3-6.

In the instant amended petition, the claim is framed as:

Mr. Hall's Sixth Amendment right to confront and cross examine the witnesses against him was violated with [sic] the court allowed the preliminary hearing transcript of Ms. Hall's ...

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