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Glass v. Sisto

January 15, 2009


The opinion of the court was delivered by: James P. Hutton, United States Magistrate Judge


BEFORE THE COURT is a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a person in state custody (Ct. Rec. 1) and Respondent's Answer and Memorandum of Authorities (Ct. Rec. 16). Petitioner appears pro se and Respondent is represented by Deputy Attorney General Peter W. Thompson. This matter was heard without oral argument. After careful review and consideration of the pleadings submitted, it is recommended that the Petition for Writ of Habeas Corpus be denied.

At the time his petition was filed, Petitioner was in custody in Vacaville, California, pursuant to his 2005 Sacramento County conviction for assault with a firearm, possession of a firearm by a convicted felon, carrying a concealed weapon, and discharging a firearm in a grossly negligent manner. (Lodged Document 2 at 319-320.) Petitioner challenges these 2005 Sacramento County convictions. (Ct. Rec. 1, Lodged Document 1 at 271-272, 274-277.)


A. Factual History

The Third District Court of Appeal described the facts of this case as follows:

On September 30, 2004, Tracy Washington, a dispatcher for the Sacramento County Sheriff's Department, received a call from a person identifying herself as Niko.

Niko told Washington she had seen "a black male shooting at another male." She described the shooter as "[a] black adult male, mid 30s and five nine, heavy, wearing a black leather jacket," dark jeans, and leaving in a black Mustang. Niko also said "that this individual lived in the same apartment complex in apartment number eight." She knew the suspect was from apartment No. 8 because they previously had problems in the complex with the same person. Niko told Washington that she was in apartment No. 11. Washington received the description of the shooter at 1:13 a.m.

Deputy Sheriff Dean McCowan was working as a patrol officer on September 30, 2004. At approximately 1:10 or 1:11 a.m., he was dispatched to a shooting that took place near Fulton Avenue and Hurley Way. He received the following description of the suspect responsible for the shooting: "Black, male adult, approximately five seven to five eight in height, heavy build, in his 30s, wearing black leather jacket and dark jeans." Between approximately 1:22 and 1:25 a.m., Deputy McCowan and three other deputies arrived at the apartment complex and checked the parking lot for the suspect vehicle -- a black Mustang -- described by the 911 caller. The deputies did not proceed to the 911 caller's apartment because of its proximity to apartment No. 8, the apartment linked to the suspect.

The deputies encountered only two people while exploring the parking lot -- a male and a female who were walking from the back of the complex east toward Fulton Avenue. Deputy McCowan testified the male was a black adult "wearing a long black leather coat, dark shirt, and dark jeans" five feet seven inches to five feet nine inches tall with a heavy build. He later identified the defendant as the male suspect.

When he saw defendant matched the description of the shooter, Deputy McCowan asked if he could talk to him, to which defendant said,"sure." As defendant approached, Deputy McCowan asked him to remove his hands from his pockets and defendant complied. Deputy McCowan then asked if he had any weapons and if defendant minded if he checked. Defendant replied, "no, go ahead," so Deputy McCowan conducted a patsearch. Deputy McCowan believed this occurred around 1:25 a.m.

Although Deputy McCowan did not find any weapons during the patsearch, he "felt a number of objects in his pockets," but did not remove any of those items at that point. Deputy McCowan then asked defendant if he had any identification, and whether he had any knowledge of the earlier altercation at the apartment complex. Defendant presented a DMV paper printout with a photostatic picture. Deputy McCowan continued to converse with defendant for approximately five minutes, during which time defendant said he was heading to his girlfriend's apartment, which defendant identified as apartment No. 8. Because this was the same apartment number linked to the suspected shooter, Deputy McCowan testified he "had reason to believe [defendant] was probably the suspect we were looking for in the shooting." Deputy McCowan then "detained" defendant and conducted a records check. At approximately 1:45 a.m., Deputy McCowan learned defendant was on parole and had an extensive criminal history for weapons and robbery charges.

Deputy McCowan relayed the status of the situation to his sergeant at approximately 1:50 a.m.; the sergeant responded that he was talking with the persons who witnessed the shooting and was considering conducting a field show up. At about 2:10 or 2:15 a.m., however, Deputy McCowan's sergeant advised him "that the initial witnesses were fearful for their safety, did not want to become involved and did not want to participate in the field show-up" with defendant. During the time Deputy McCowan was with defendant and awaiting information on the field show up, other deputies were investigating the crime scene and speaking to defendant's girlfriend.

A crime scene investigator collected gunshot residue samples from defendant around 2:20 a.m., a process which took about 10 minutes. At approximately 2:44 a.m., Deputy McCowan contacted defendant's parole agent, Eric Sakazaki, who placed a parole hold on defendant based on the information he received from Deputy McCowan. However, Agent Sakazaki did not authorize a further search of defendant's person or property.

Based on the parole hold, Deputy McCowan conducted an inventory search of defendant between 2:45 and 2:50 a.m., at which time he removed a set of keys from defendant's pocket. The keys were attached to a keyless remote entry system, which the deputies could use to attempt to locate defendant's car. Upon discovering a means to locate the car, Deputy McCowan gave the keys and remote to Deputy Jeff Long who went through the parking lot clicking the remote to see which car responded.

During this time, Deputy Stacy Jaquith spoke with defendant's girlfriend, Victoria Thomas, the female found walking with defendant in the parking lot. Thomas gave Deputy Jaquith a statement about what happened that night. Shortly after 2:50 a.m., Deputy Jaquith informed Deputy McCowan that Thomas implicated defendant in the shooting; however, this was after Deputy McCowan had searched defendant's pockets. Additionally, Thomas gave deputies information about the location of the black Mustang.

Based on the information provided by Thomas, deputies found the black Mustang immediately south of the apartment complex. The Mustang was registered to defendant. Deputy McCowan later learned that deputies found a revolver or pistol inside the trunk of the car.

(Lodged Document 6 at 2-5).

B. Procedural History

After a jury trial in the Sacramento County, California Superior Court, the Petitioner was found guilty of assault with a firearm;*fn1 possession of a firearm by a convicted felon*fn2 , carrying a concealed weapon;*fn3 and discharging a firearm in a grossly negligent manner.*fn4 (Lodged Document 1 at 271-272, 274-277.) On February 25, 2005, he was sentenced to seventeen years of confinement. (Lodged Document 2 at 319-320.)

The Petitioner appealed to the California Court of Appeal, Third Appellate District. (Lodged Document 2 at 321-322.) On April 25, 2006, the Third District Court of Appeal issued an unpublished opinion affirming Petitioner's conviction and sentence. (Lodged Document 6.) Petitioner then filed a petition for review in the California Supreme Court. (Lodged Document 7.) Petitioner presented the following issues to the California Supreme Court following his appeal:

(1) Was the defendant denied his fourth amendment right to be free from unreasonable searches and seizures?

(2) Did prosecutorial misconduct deprive the defendant of his rights to due process and a fair trial?

(3) Did insufficient evidence of a prior conviction deprive defendant of his right to due process? (Lodged Document 7 at 6, 13, 20.)

The California Supreme Court denied Mr. Glass's petition for review on June 28, 2006. (Lodged Document 8.) On November 15, 2006, Mr. Glass filed his petition for writ of habeas corpus with this Court. (Ct. Rec. 1.)

In his federal habeas petition, Mr. Glass raises the same three issues as those raised in the state's highest court. (Cf. Ct. Rec. 1 at 5-6 with Ct. Rec. 1, Exhibit E at 6, Exhibit F at 13, and Exhibit G at 20.)


As a preliminary issue, Petitioner must have exhausted his state remedies before seeking habeas review. The federal courts are not to grant a writ of habeas corpus brought by a person in state custody pursuant to a state court judgment unless 'the applicant has exhausted the remedies available in the courts of the State.' Wooten v. Kirkland, 540 F. 3d 1019, 1023 (9th Cir. 2008), citing 28 U.S.C. §2254(b)(1)(A). "This exhaustion requirement is 'grounded in principles of comity' as it gives states 'the first opportunity to address and correct alleged violations of state prisoner's federal rights.'" Id., citing Coleman v. Thompson, 501 U.S. 722, 731 (1991).

In order to exhaust state remedies, a petitioner must have raised the claim in state court as a federal claim, not merely as a state law equivalent of that claim. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995). The state's highest court must be alerted to and given the opportunity to correct specific alleged violations of its prisoners' federal rights. Id., citing Picard v. Connor, 404 U.S. 270, 275 (1971). To properly exhaust a federal claim, the petitioner is required to have presented the claim to the state's highest court based on the same federal legal theory and the same factual basis as is subsequently asserted in federal court. Hudson v. Rushen, 686 F. 2d 826, 829-30 (9th Cir. 1982), cert. denied, 461 U. S. 916 (1983).

Respondent may waive the exhaustion requirement. See 28 U.S.C. § 2254 (b)(3) ("A state shall not be deemed to have waived the exhaustion requirement or be estopped from reliance on the requirement unless the state, through counsel, expressly waives the requirement.") In his answer to the petition, Respondent affirmatively alleged "Respondent admits that Petitioner has exhausted claims one and two of his petition." (Ct. Rec. 16 at 2.) This clearly constitutes an express waiver by counsel of the exhaustion requirement of claims one and two. See Dorsey v. Chapman, 262 F. 3d 1181, 1187 at n. 8 (11th Cir. 2001). Generally, a habeas court may, in its discretion reach the merits of a habeas claim or may insist on exhaustion of state remedies despite a State's waiver of the defense. See Boyd v. Thompson, 147 F. 3d 1124, 1127 (9th Cir. 1998). The court's discretion should be exercised to further the interests of comity, federalism, and judicial efficiency. See id. It appears to advance the interests of the parties and judicial efficiency (without unduly offending the interests of either comity or federalism) for the Court to decide claims one and two on the merits.

Respondent concedes that because Petitioner has properly exhausted federal habeas claims 1 and 2, the federal court should consider the claims but deny them on the merits. (Ct. Rec. 16 at 2). Respondent argues that claim 3 should be denied because, although presumptively unexhausted, the Court may nonetheless deny a claim when, as alleged, it is clear no colorable federal claim is presented. (Ct. Rec. 16 at 2, citing 28 U.S.C. § 2254(b)(2); Cassett v. Stewart, 406 F. 3d 614, 624 (9th Cir. 2005).)

Federal habeas claim one Mr. Glass's first federal habeas claim is that his Fourth Amendment rights were violated when he was illegally searched and detained. (Ct. Rec. 1 at 5.) In his petition for review in the California Supreme Court, Mr. Glass presented the claim as it appears in the habeas petition ("The denial of Appellant's motion to suppress was erroneous as the detention and search of Appellant was unreasonable under the Fourth Amendment.") (Ct. Rec. 1 at Exhibit E at 6; Ct. Rec. 1 at 5.) The petitioner cited federal case law in support of his argument. (Ct. Rec. 1, Exhibit E at 12.) In both the state and federal petitions, Petitioner contests his detention and search.

Respondent is correct that Mr. Glass exhausted his first federal habeas claim, because he raised the issue based on the same facts in both the state's highest court and the federal court, and raised it in the state's highest court invoking the same federal legal protections. See merits herein.

Federal habeas claim two Mr. Glass's second federal habeas claim is that prosecutorial misconduct during closing argument deprived him of his rights to due process and a fair trial. (Ct. Rec. 1 at 5.) In the state's highest court, Mr. Glass raised the issue the same way and relied on the same facts. (Ct. Rec. 1, Exhibit F at 13.) Mr. Glass cited federal constitutional provisions and federal case law in support of the argument to the state's highest court. (Ct. Rec. 1, Exhibit F at 15.) Respondent is correct that Mr. Glass exhausted his second federal habeas claim. See merits herein.

Federal habeas claim three Mr. Glass's third federal habeas claim is that the trial court violated his right to due process because it relied on insufficient evidence of his alleged prior conviction when he was convicted on the instant charges. (Ct. Rec. 1 at 6.) Mr. Glass raised the same claim as a due process violation in the state supreme court. And although he raised the sufficiency of the evidence of his prior conviction in the Court of Appeal, he did not raise as a due process violation but as a violation of double jeopardy. Respondent admits that this claim is presumptively unexhausted.

Mixed Petitions

Prior to enacting AEDPA, Lundy held that federal district courts may not adjudicate mixed petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted claims. Rhines v. Weber, 544 U.S. 269, 273-274 (2005), citing Rose v. Lundy, 455 U.S. 509 (1982). In 1996, AEDPA added a one-year statute of limitations on filing federal habeas petitions. 28 U.S.C. § 2244(d). As a result of the interplay between AEDPA's 1-year statute of limitations and Lundy's dismissal requirement, petitioners who come to federal court with "mixed" petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims. Rhines, 544 U.S. at 274-275. Accordingly, courts have adopted a "stay and abeyance" procedure where, rather than dismiss the mixed petition pursuant to Lundy, a district court might stay the petition and hold it in abeyance while the petitioner returns to state court to his exhaust his previously unexhausted claims. Once the state remedies are exhausted, the district court lifts the stay and allows the petition to proceed in federal court. Rhines, 544 U.S. at 275-276.

A district court is permitted to stay a mixed petition --a petition containing both exhausted and unexhausted claims --- in "limited circumstances," so that a petitioner may present his unexhausted claims to the state court without losing his right to federal habeas review due to the relevant one-year statute of limitations. Wooten, 540 F. 3d at 1023, citing Rhines, 544 U.S. at 273-275, 277-278 (2005). In Rhines, the U.S. Supreme Court stated that "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id., citing Rhines, 544 U.S. at 277. Under Rhines, a district court must stay a mixed petition only if: (1) the petitioner has "good cause" for his failure to exhaust his claims in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that the petitioner intentionally engaged in dilatory litigation tactics. Wooten, 540 F. 3d at 1023, citing Rhines, 544 U.S. at 278. The Wooten court continued:

Wooten argues that he was entitled to a stay under Rhines so that he could exhaust his cumulative error claim. We hold that the district court did not abuse its discretion in concluding that Wooten did not have 'good cause' for failing to exhaust his cumulative error claim. As a result, we need not reach the other two factors in the Rhines test.

Wooten, 540 F. 3d at 1023

Like Mr. Wooten, Mr. Glass has not shown good cause for failing to exhaust his third claim. Accordingly, it is not appropriate for the court to stay his third claim pending exhaustion in state court.


As noted, Petitioner has exhausted his first two federal habeas claims. With respect to claim three, the "procedural default doctrine 'bar[s] federal habeas [review] when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.'" Calderon v. United States District Court, 96 F. 3d 1126, 1129 (9th Cir. 1996)(quoting Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). This doctrine applies when: (1) a state court has been presented with a federal claim, but declined to reach the issue pursuant to an independent and adequate state procedural rule, or when (2) it is clear that the state court would hold the claim procedurally barred. Harris v. Reed, 489 U.S. 255, 260-263 (1989). This Court may not reach the merits of procedurally defaulted ...

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