The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
DEATH PENALTY CASE FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding with appointed counsel, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss (Doc. 222), filed on May 23, 2007. Petitioner filed an opposition (Doc. 227) on July 20, 2007. Respondent's reply (Doc. 232) was filed on August 23, 2007. A hearing was held before the undersigned on November 7, 2007. Counsel for both petitioner and respondent appeared telephonically at the hearing.
This case proceeds on petitioner's third amended petition ("TAP") (Doc. 183), filed May 10, 2006, challenging his 1988 conviction and death sentence. Respondent brings this motion to dismiss the third amended petition as a mixed petition containing both unexhausted and exhausted claims. Respondent identifies 18 claims as unexhausted*fn1 , and alleges these claims are either entirely new claims, contain new factual allegations, or incorporate an intervening change in federal law. Petitioner responds that each of the claims identified are either exhausted or that any attempt at exhaustion would be futile. As to the claims petitioner alleges are exhausted, he states they have been raised in the state court either through his informal reply brief in support of his second state habeas petition or in his pro se petition filed with the California Supreme Court.
Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required before the federal court can grant a claim presented in a habeas corpus case. See Rose v. Lundy, 455 U.S. 509 (1982); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler, 336 F.3d 839 (9th Cir. 2003). "A petitioner may satisfy the exhaustion requirement in two ways: (1) by providing the highest state court with an opportunity to rule on the merits of the claim . . .; or (2) by showing that at the time the petitioner filed the habeas petition in federal court no state remedies are available to the petitioner and the petitioner has not deliberately by-passed the state remedies." Batchelor v. Cupp , 693 F.2d 859, 862 (9th Cir. 1982) (citations omitted). The exhaustion doctrine is based on a policy of federal and state comity, designed to give state courts the initial opportunity to correct alleged constitutional deprivations. See Picard v. Connor, 404 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518. Regardless of whether the claim was raised on direct appeal or in a post- conviction proceeding, the exhaustion doctrine requires that each claim be fairly presented to the state's highest court. See Castille v. Peoples, 489 U.S. 346 (1989). Although the exhaustion doctrine requires only the presentation of each federal claim to the highest state court, the claims must be presented in a posture that is acceptable under state procedural rules. See Sweet v. Cupp, 640 F.2d 233 (9th Cir. 1981). Thus, an appeal or petition for post-conviction relief that is denied by the state courts on procedural grounds, where other state remedies are still available, does not exhaust the petitioner's state remedies. See Pitchess v. Davis, 421 U.S. 482, 488 (1979); Sweet, 640 F.2d at 237-89.*fn2
In addition to presenting the claim to the state court in a procedurally acceptable manner, exhaustion requires that the petitioner make the federal basis of the claim explicit to the state court by including reference to a specific federal constitutional guarantee. See Gray v. Netherland, 518 U.S. 152, 162-63 (1996); see also Shumway v. Payne, 223 F.3d 982, 998 (9th Cir. 2000). It is not sufficient for the petitioner to argue that the federal nature of the claim is self-evident. See Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by 247 F.3d 904 (9th Cir. 2001).
III. PRELIMINARY DISCUSSION
Petitioner alleges that it would be futile to require him to return to state court to exhaust some of his new claims. Petitioner argues that these "new" claims center around newly discovered facts that petitioner was only able to discover through a new post-conviction discovery process that was not previously available (See Cal. Penal Code § 1054.9, which became effective January 1, 2003). Through this post-conviction discovery, petitioner was able to discover material that the prosecution should have disclosed at the time of trial but failed to do so. He argues that the state courts are responsible for the lack of discovery and therefore for the lack of exhaustion because case precedent prior to § 1054.9 did not allow discovery before an order to show cause was issued, which did not happen in petitioner's cases. Therefore, because the state court bears responsibility for petitioner's failure to exhaust, he concludes exhaustion should be waived. In addition, the delay for exhaustion would be unacceptable in this case. He also asserts that the state court has already rejected the same or similar claims in petitioner's previous state petitions. He claims fairness requires this court to excuse exhaustion, finding circumstances exist that render the state court process ineffective to protect petitioner's rights.
Respondent argues that the futility doctrine has been rejected (but not overruled) and is only available in limited circumstances such as where it is purely a question of law. He alleges that this is not the case here because petitioner's unexhausted claims are based on new factual allegations not questions of law.
The futility doctrine was advanced in Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir. 1981) (citing, Fay v. Noia, 372 U.S. 391 (1963)), where the Ninth Circuit stated "[t]he exhaustion requirement is a matter of comity, not of jurisdiction. Its purpose is to afford the state courts, which have an equal responsibility with the federal courts to vindicate federal constitutional rights, the first opportunity to remedy a constitutional violation." The court goes on to state that "[a] number of circuits have held that a petitioner may be excused from exhausting state remedies if the highest state court has recently addressed the issue raised in the petition and resolved it adversely to the petitioner, in the absence of intervening United States Supreme Court decisions on point or any other indication that the state court intends to depart from its prior decisions." Id. (citations omitted). "We adopt the futility doctrine because it promotes comity by requiring exhaustion where resort to state courts would serve a useful function but excusing compliance where the doctrine would only create an unnecessary impediment to the prompt determination of individuals' rights. However, we find the futility doctrine inapplicable to the petition before us." Id. (concluding that the standard of review was changed by the Supreme Court and the state court had not had an opportunity to consider the questionable statute under the new standard for review).
The Sweet futility doctrine was criticized by the Supreme Court in Engle v. Isaac, 456 U.S. 107 (1982). There the Court stated
If the defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid.
The Ninth Circuit has also questioned the futility doctrine. "Although we have not explicitly overruled Sweet, we have rejected the 'futility doctrine' in at least one post-Engle decision." Noltie v. Peterson, 9 F.3d 802, 805 (9th Cir. 1993) (citing Roberts v. Arave, 847 F.2d 528, 530 (9th Cir. 1988)). "The exhaustion requirement is excused only in those 'rare cases where exceptional circumstances of peculiar urgency' mandate federal court interference." Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993) (quoting Ex Parte Hawk, 321 U.S. 114, 118 (1944)).
As the respondent points out, the futility doctrine is most applicable when the issue is purely legal. See Noltie, 9 F.3d at 806. However, when the issue is factual, the doctrine is not available. In this case, petitioner asserts that exhaustion should be excused as to some claims based on the futility doctrine. Because these claims are factual and not purely legal, the futility doctrine should not apply.
Petitioner argues that several of the claims at issue here were exhausted in the state courts because he presented them in pro se petitions filed with the California Supreme Court. Respondent argues that these claims could not be located in the voluminous filings with the state court and that, even as to those claims that could be located, the claims raised in his third amended petition include additional facts that substantially alter the claim rendering them unexhausted. Petitioner has filed a notice to assist the parties and the court with the location of those claims he alleges were exhausted in his pro se petition.
This issue of whether the claims raised in petitioner's pro se state petition were sufficient to exhaust the claims raised in this court's proceeding has previously been decided. This court has found that, assuming petitioner raised the same claims in his pro se state court filings and the instant federal petition, the pro se filings were sufficient to exhaust the claims. (See Docs. 117, 118). The court finds no reason to deviate from the prior ruling.
Petitioner argues that several of his claims were exhausted in the state courts by including them in his informal reply. Respondent argues that the informal briefing process is only used to assist the state court in determining whether the habeas corpus petition lacks merit and may be rejected summarily. However, a petitioner may not use the informal reply to amend the petition, just like a traverse cannot be used to add additional claims or amend the petition.
California courts allow new claims to be raised in informal reply procedures. See In re Gay, 19 Cal.4th 771 (1998), In re Soderstein, 146 Cal.App.4th 1163 (5th Dist. 2007). This is especially true where petitioner incorporates by reference the claims raised in his informal reply. See Gay, 19 Cal.4th at 781 n.7; Soderstein, 146 Cal.App.4th at 1173 n.6. In fact, the California courts will even allow new issues raised for the first time in a petition for rehearing, especially in a capital case. See People v. Malone, 205 Cal. 29, 32-33 (1928).
In reviewing a petition, the state courts have the ability to request informal briefing from the parties prior to requiring a formal response from the government to help the court determine whether the petitioner has stated a prima facie case. Use of the informal response procedure has two purposes. First it helps the petitioner who is an inartful pleader in using the government to help flush out the facts to support his case. Second, informal briefing may provide the court with irrefutable evidence that the allegations are factually unfounded. Informal briefing occurs prior to the filing of a formal return and traverse. Raising a claim in the informal briefing stage is in contrast to the use of the traverse to raise new claims, which is not allowed by the state courts. See In re Clark, 5 Cal.4th 750, 781 n.16 (1993).
Respondent attempts to analogize a traverse with an informal reply. They are not analogous. The biggest difference between an informal reply and a traverse is the timing of the filing and the ability of the opposing party to respond. When an informal response and reply are ordered by the state court, both parties have the ability to respond to the claims and arguments raised in either. The petitioner has the ability to respond to an informal response in both his informal reply and his traverse. A respondent has the ability to respond to an informal reply in his return. See e.g. People v. Romero, 8 Cal.4th 728 (1994). Therefore, a respondent has the ability to contradict any claim raised in an informal reply, unlike a traverse which is generally the last pleading submitted before the case is submitted to the court for a decision.
The undersigned finds that the California Supreme Court had before it petitioner's informal reply and all claims raised therein, to which the respondent had the ability to respond. Accordingly, any claim raised in the current petition which was raised in petitioner's informal reply brief in the state court will be found to be exhausted.
Respondent argues the following claims in petitioner's third amended petition are unexhausted or contain unexhausted sub-claims or allegations: claims 1, 2, 13, 34, 35, 49, 54, 55, 58, 65, 92, 102, 103, 104, 111, 114, 117, and 118. Petitioner argues claims 1, 2, 34, 35, 55, 58, 102, 104, and 114 were raised in petitioner's informal reply to his second state habeas petition. He argues claims 2, 49, 65, and 102 were raised in his pro se petition filed in the California Supreme Court. Petitioner concedes that claims 13, 54, 103, 117, and 118 are unexhausted, relying on his argument that any requirement to exhaust in state court would be futile.
Claim 1: Denial of effective assistance of counsel by complete breakdown of attorney-client relationship.
Respondent argues that this claim, which involves allegations regarding what Charles Andres would have testified to and allegations regarding the District Attorney investigator's interview of Fred Dixon, is unexhausted. Petitioner claims he raised both of these factual issues in his informal reply brief. Respondent maintains that raising these issues in the informal reply brief was insufficient to exhaust these allegations. In addition, respondent argues that the allegations raised in petitioner's state habeas petition involved different factual circumstances, specifically those regarding false statements as to the reasons counsel failed to call witnesses other than Andres or Dixon. However, respondent does not controvert petitioner's claim that he raised this issue in his informal reply brief. He simply relies on the argument that including a claim in the informal reply brief fails to exhaust any claim. As discussed above, the undersigned finds raising a claim in the informal reply brief is sufficient to exhaust. Therefore, the undersigned finds that claim 1 is exhausted.
Claim 2: Each attorney who represented Mr. Barnett in the trial court had conflicts of interest because of his representation of other persons involved in the case, requiring that the judgment be set aside; counsel represented Mr. Barnett ineffectively in failing to bring these conflicts to the attention of the court in a timely and appropriate manner.
Respondent claims that allegations regarding trial counsel's former representation of Dave McGee and allegations regarding ". . .counsel's failure to produce evidence that Cantwell had meth oil that Barnett took" were not properly raised in the state court. (See Motion to Dismiss at 5). Petitioner argues that these factual allegations were raised in both his informal reply brief and his pro se state court petition.
As to petitioner's allegations regarding the representation of McGee, the relevant portion of this claim is as follows:
Mr. Mueller, and by association, Mr. Schroder and Mr. Stapleton, had another conflict of interest. Mr. Mueller represented State witness Dave McGee for a 1977 offense of Vehicle Code § 23101(a), driving under the influence with injury, a felony. Exh. 216 (discovery page 3575). Because of Mueller's continuing duty of loyalty to McGee, he and Schroder were prevented from eliciting testimony from Mr. Barnett or presenting evidence that would have implicated McGee in wrong-doing, such as his brandishing a rifle at Mr. Barnett in the confrontation at McGee's house in 1985, when McGee was already a convicted felon. The adverse effect of this conflict was that Mr. Kenkel, because of his association with Mr. Stapleton, failed to impeach Dave McGee with one felony conviction that the prosecution did disclose - - the 1977 driving under the influence with injury conviction for which Mr. Mueller represented McGee.
TAP at 39 (footnote omitted).
Petitioner claims this allegation was also included in his pro se petition, directing the court to page 13, paragraph 26 of his declaration attached to volume IX of the petition. Paragraph 26 states:
MORE DAVID McGEE IMPEACHMENT: Fact Douglas Nisson, ex-policeman, my PI, told me he was present when McGee stated how much he despised the law, and had no respect for the law -- as he climbed up on a squad car and defecated on the car. This demonstrates the contempt which McGee, as an outlaw biker and dope fiend, held for the justice system. The jury would have understood that his work "to tell the truth;" therefore, should be viewed with skepticism. McGee likely was represented by the PD. Counsel was so conflicted he refused to use even this. McGee lied about almost everything, except that I did leave a note on Eggett's Jeep seat the day I left in 1985, telling Eggett that our partnership was over. (That impeached State witnesses Racowski and McGee; both falsely testified it was Eggett who terminated the partnership because I was violent. Then the DA asserted he could bring in over 50 alleged violent acts, including attempts to murder others -- all lies -- which allegedly led to Eggett terminating. Counsel was so conflicted that he objected to McGee's exculpatory testimony about the note I left (TR 9212:28-9214:25.), which established I terminated the partnership, impeaching McGee and Racowski, and which would have caused the more than 50 other crimes to be excluded and stricken, if proven I terminated the partnership; because then the perjurious [sic] alleged violence evidence has no admissibility. Due to conflicts Counsel was intentionally IAC by objecting to the note testimony and note, and in not moving to admit the note as evidence, arguing the note evidence, and not moving to strike the more than 50 other crimes evidence, and for mistrial. (Petitioner's pro se petition, Vol. IX, at p. 13, ¶ 26 (emphasis added)).
Respondent contends that the claim is unexhausted because, as presented in the pro se petition, it was a speculative claim that a conflict of interest existed. He argues that a speculative claim is not the same "as a conflict of interest claim that is supported by evidence that the public defender did represent a witness." (See Reply at 7). Petitioner maintains that this sub-claim is exhausted but asserts that, if it is not, it should be deemed exhausted because it would be futile to require him to return to the state court at this point.
Petitioner included the claim that McGee was represented, or at least he believed McGee had been represented, by the public defender in his pro se petition as noted above. That he is now claiming for sure that McGee had been represented by the public defender, and the nature of that representation, does not substantially alter his claim. This claim was raised before the state court, and the undersigned finds it is exhausted.
As to petitioner's allegations regarding counsel's failure to produce evidence that Cantwell had meth oil that Barnett took, the court agrees with petitioner that respondent does not pinpoint exactly where the allegation he takes issue with is located in the petition. Petitioner assumes respondent was referring to paragraph 194 which states:
Mr. Kenkel also owed a duty of loyalty to Mr. Barnett. That duty of loyalty required that Mr. Kenkel take actions that were in Mr. Barnett's interests without regard to the interest of a third party. Notwithstanding his duty of loyalty to Mr. Barnett, defense counsel failed to investigate Mr. Barnett's allegations regarding Jimmy Skidmore. Skidmore had critical evidence in his possession; he had some of the meth oil that Mr. Barnett testified he had stolen from Cantwell. Production of some of the meth oil before the jury was critical to Mr. Barnett's defense. The prosecutor argues in closing that Mr. Barnett was lying about the meth oil, that Mr. Barnett had never stolen meth oil from Cantwell. RT 11661, 11667-69. The existence of the meth oil was a disputed ...