Petitioner, a California prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On June 4, 2008, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days.
Respondents have filed objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Although respondents readily concede that petitioner's Fourth Amendment and Eighth Amendment grounds for relief were fully exhausted during his direct appeal in state court, they nonetheless object to the Findings and Recommendations insofar as it overlooks what they interpret as the Federal Petition's third claim based on ineffective assistance of counsel.
It is well established that "a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus." Picard v. Connor, 404 U.S. 270, 275 (1971); see also 28 U.S.C. § 2254(b) (codifying rule). A state prisoner's federal habeas petition, therefore, "should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims." Coleman v. Thompson, 501 U.S. 722, 731 (1991) (emphasis added); see also Rose v. Lundy, 455 U.S. 509, 510 (1982) (holding that a district court must dismiss petitions containing mix of exhausted and unexhausted claims unless a petitioner chooses to amend and resubmit).
1. Question 12 of Federal Petition
Respondents' objections are predicated upon petitioner's response to Question 12 of the Federal Petition. (See Pet. 3-4.) The first paragraph in Question 12 directs petitioners to do the following:
State concisely every ground on which you claim that you are being held unlawfully. Summarize briefly the facts supporting each ground. If necessary, you may attach pages stating additional grounds and facts supporting same. . . . For your information, the following is a list of the [ten] most frequently raised grounds for relief in habeas corpus proceedings. Each statement preceded by a letter constitutes a separate ground for possible relief. . . . Do not check any of these listed grounds. If you select one or more of these grounds for relief, you must allege facts.
(Id. at 3-4.) As expressed, immediately following this instruction is a list of ten most frequently raised grounds related to habeas relief, labeled (a) through (j). (Id.) Petitioner failed to explicitly follow the question's directive to withhold from checking/marking the listed grounds, instead circling Ground (c), "Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure," and Ground (d), "Conviction obtained by use of evidence obtained pursuant to an unlawful arrest." (Id.) Finally, Questions 12(A) and 12(B), labeled "Ground one" and "Ground two," respectively, provide space for petitioners to respond to the instruction more thoroughly by listing their asserted grounds for relief in writing. (Id.)
Respondents point out, and the Federal Petition so reflects, that petitioner wrote the phrase "see attached pages" on the lines entitled "Ground one" and "Ground two" instead of listing the actual grounds for relief. (Id. at 5; Resp't's Objections to Findings and Recommendations 2:5-7.) Respondents contend that the phrase "see attached pages" references the plethora of documents that petitioner attached to the Federal Petition, including a handwritten document titled "Ground 1-A."
(Resp't's Objections to Findings and Recommendations 2:22-23.)
The heading of this "Ground 1-A" document contains the phrases "Grounds for Relief[,] Ineffective Assistance of Counsel Barry Zimmer [sic]" and "'Supporting Facts.'" (Pet. 10.) The body of the two-page document consists of facts alleged by petitioner in support of his claim of ineffective assistance of counsel.*fn1 (Id. at 10-11.) If petitioner's reference to the "Ground 1-A" document represents his intent to utilize the claim of ineffective assistance of counsel in the Federal Petition, petitioner would not qualify for federal habeas relief under 28 U.S.C. § 2254(b) because the Federal Petition would include a presently unexhausted ground for relief. See 28 U.S.C. § 2254(b)(1)(A) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State.").
A closer inspection of the Federal Petition, however, suggests that petitioner was not referencing the "Ground 1-A" document when he used the phrase "see attached pages" in his response to Question 12. Specifically, Question 11 of the Federal Petition instructs petitioners to list any previously filed "petitions, applications, or motions with respect to [the trial court's judgment] in any court, state or federal" and also to list the "Grounds raised" in that proceeding. (Pet. 2.)
Petitioner thus appropriately answered Question 11 by referencing his State Petition proceedings, see supra, Part I.C, and under "Grounds raised," petitioner wrote "Ineffective Assistance of Counsel[,] see attached writ Exhibit (A-1)"--Exhibit ...