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Catlin v. Wong

February 17, 2009

STEVEN DAVID CATLIN, PETITIONER,
v.
ROBERT WONG*FN1, RESPONDENT.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

DEATH PENALTY CASE

Order Regarding Exhaustion Acting Warden Status of Petitioner's Petition for of San Quentin State Prison, Writ of Habeas Corpus and Ordering Briefing on Stay and Abeyance

Petitioner Steven David Catlin ("Catlin") filed his petition for writ of habeas corpus, under 28 U.S.C. § 2254, September 24, 2008. Respondent Robert Wong ("the Warden") filed an answer to the petition October 24, 2008. Counsel for Catlin and for the Warden filed a joint statement regarding the exhaustion status of Catlin's federal petition December 12. Concurrently, counsel for Catlin filed a declaration setting forth the parties respective arguments regarding the claims where the exhaustion status was disputed.

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), state prisoners must exhaust all available state remedies before a federal court may grant them habeas relief. 28 U.S.C. § 2254(b)(1)(A); see also O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999). To satisfy the exhaustion requirement of § 2254, habeas petitioners must "fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass upon and to correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995). Fair presentation of a federal claim in state court requires reference to both the operative facts and federal legal theory, such as a specific provision of the federal constitution or citation to federal or state cases involving the legal standard for a federal constitutional violation. Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (citing Duncan v. Henry; Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003)). However, general appeals to broad constitutional guarantees, such as due process, are not sufficient to present the substance of such a claim to the state court, Gray v. Netherland, 518 U.S. 152, 163 (1996), and an argument that is essentially one of state law does not alert a state court to the federal nature of a claim. Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996).

Agreed Exhausted

The parties agree the following claims are exhausted: Claims 1; 2; 4; 5; 6; 7; 9; 12 (regarding the Sixth - right to effective assistance of counsel, Fifth and Fourteenth Amendments - due process); 13; 15; 17 (to the extent it relies on the Sixth and Fourteenth Amendments - confrontation rights); 21; 23 (to the extent it relies on the Fifth and Fourteenth Amendments due process rights); 26Q; 27; 28; 29; 30; 31; 32 (as it relates to the cumulative effect of the guilt phase claims raised in the state Appellant's Opening Brief); 34; 35A, 35B, and 35C; 36; 37; 38 (to the extent it is based on the cumulative effect of the state's misconduct and counsel's ineffectiveness); 39 (to the extent it is based on facts and claims alleged in the state petition at pages 390-392); 40; 41; 42; 43A (to the extent it relies on the Eighth Amendment) and 43B (to the extent it relies on the Eighth and Fourteenth Amendments); 44; 47C (to the extent it relies on the Eighth and Fourteenth Amendments and to written jury findings of aggravated factors); 48 (to the extent it relies on the Eighth Amendment); 49 (to the extent it relies on the Fifth, Eighth and Fourteenth Amendments); 50; 67 (as it relates to the use of lethal injection); and 68 (to the extent it is based on the cumulative effect of errors alleged in the Appellant's Opening Brief at 254-256).

Agreed Unexhausted

The parties agree the following claims are unexhausted: Claims 3; 12 (to the extent it relies on the Eighth Amendment); 17 (to the extent it is based on the Fifth and Fourteenth Amendment due process clause and the Eighth Amendment); 23 (to the extent it relies on the Eight Amendment); 26P; 32 (as it relates to the cumulative effect of all guilt phase claims other than those raised in the state Appellant's Opening Brief); 33; 35D and 35E; 38 (to the extent it is based on grounds not alleged in the state petition - juror misconduct and trial court errors); 39 (to the extent it is based on facts not asserted in state court); 43A and 43B (to the extent it is based on the Fifth and Sixth Amendments); 45; 46; 47A (agreed unexhausted to the extent it relies on the Fifth, Sixth and Fourteenth Amendments), 47B, 47C (to the extent it relies on International Law and relates to unanimous jury findings of aggravating factors); 48 (with regard to the Fifth and Fourteenth Amendments); 49 (with regard to the Sixth Amendment and to the extent it relies on Apprendi); 51; 52; 54; 55; 56; 58 subclaims on pages 533-544 -starting with "Multiple Counts of Special Circumstances and Aggravation Claims" and ending with "Failure to Inform the Jury that it Need Not be Unanimous as to Mitigating Circumstances," subclaim entitled "Failure to Require Unanimity as to Aggravating Circumstance," and subclaims on pages 546-553 - starting with "Burden of Proof and Persuasion Claims" and ending with "Cumulative Constitutional Error"; 59; 60; 61; 62; 63; 64; 65; 66; 67 (as it relates to lethal gas and International Law); 67(II); and 68 (to the extent it is based on unexhausted claims). Agreed Partially Exhausted and Partially Unexhausted The parties agree Claim 58, the subclaim entitled "Death Eligibility" (to the extent it relied on the Eighth Amendment) is exhausted, and agree that it is partially unexhausted (to the extent it relies on the Fifth, Sixth and Fourteenth Amendments).

Agreed Partially Unexhausted

The parties agree the following claims were unexhausted in part: Claim 8 (to the extent it asserts violations of international law, Treaties, Norms, and Customs);

Claim 10 (to the extent it is based on the Eighth Amendment) ; Claim 14 (to the extent it is predicated on the Fifth Amendment due process ground);

Claim 16 (to the extent it is based on the Eighth Amendment right to a reliable guilt and penalty phase verdict and judgment) ;

Claim 20 (to the extent it is predicated on non-due process grounds, like the Fifth - fair trial, Sixth - confront evidence, and Eighth Amendments - reliable conviction and sentence);

Claim 24B (with regard to the Eighth Amendment), 24C (with regard to the Sixth and Eighth Amendments), 24D (with regard to the Sixth Amendment), and 24F (with regard to the Sixth and Eighth Amendments);

Claim 26B (with regard to the Fifth Amendment), 26E (with regard to the Fifth Amendment), 26J (with regard to the Fifth and Eighth Amendments), 26K (with regard to the Fifth and Eighth Amendments), and 26N (with regard to the Eighth Amendment); and Claim 57 (to the extent it relies on the Eighth and Fourteenth Amendments). Disputed Exhaustion Status (in whole, or in part) The parties did not agree about the exhaustion status of the following claims: Claim 11. The parties agree this claim is unexhausted to the extent it relies on the Eighth Amendment, but disagree about the status of the remainder of the claim. The Warden alleges it is unexhausted to the extent it relies on any federal right not asserted in state court, such as the Sixth Amendment (right to an impartial jury or to confront witnesses) and the Eighth Amendment (right to be free from cruel and unusual punishment). Catlin asserts the Sixth Amendment legal grounds for this claim are exhausted in the state petition at page 16, where it cites United States v. Wade, 388 U.S. 218 (1967). Catlin states Wade recognizes that the deprivation of the right to counsel necessarily includes the right to trial by an impartial jury and to confront witnesses, id. at 226-227, and contends the citation to Wade alerted the California Supreme Court to the federal legal grounds for this claim.

Catlin is correct; Wade states the right to counsel includes the guarantee that the accused need not stand alone against the State at any stage of the prosecution, and also guarantees the rights in the Sixth Amendment - to a speedy and public trial by an impartial jury, to be informed of the nature and cause of the accusation, and to confront witnesses against him and compel witnesses in his favor. Wade, 388 U.S. at 226-227. Citation to a federal case involving the legal standard for a federal constitutional violation is sufficient to satisfy the fair presentation requirement. Claim 11 is unexhausted to the extent it relies on the Eighth Amendment. Claim 18. The parties agree subclaims B through H and J are unexhausted to the extent they rely on the Sixth Amendment right to confront witnesses, but disagree about the status of the remainder of the claim. The Warden alleges that subclaim I is unexhausted. Catlin asserts subclaim I was exhausted in the Appellant's Opening Brief at 128-130. Subclaim A is almost an identical copy of Section III, Argument K, part 2, presented in Catlin's Opening Brief on appeal, starting at page 113. This claim was fairly presented to the state court, except to the extent that it relies on the Sixth Amendment right to confront witnesses, which was not argued to the state court.

Subclaim I is almost an identical copy of Section III, Argument K, part 10, presented in Catlin's Opening Brief on appeal, starting at page 128. This claim was fairly presented to the state court, except to the extent that it relies on the Sixth Amendment right to confront witnesses, which was not argued to the state court.

All subclaims of Claim 18 are unexhausted to the extent they rely on the Sixth Amendment right to confront witnesses. The remaining legal grounds are exhausted.

Claim 19. The parties do not state their position on this claim, but it is almost an identical copy of Section III, Argument L, presented in Catlin's Opening Brief on appeal, starting at page 131. Claim 19 was fairly presented to the state court and is exhausted.

Claim 22. The parties do not agree on the exhaustion status of this claim. The Warden alleges that, as it relates to the letter from Bethesda Naval Hospital, the claim is unexhausted to the extent it is based on the Fifth, Sixth, and Eighth Amendments. Catlin asserts the claim is exhausted in the state petition at page 122, where each of these legal grounds were raised while also incorporating the Appellant's Opening Brief ("AOB") Section III, Arguments I, O, and P, which include the letter from Bethesda Naval Hospital (AOB at 173-174). Catlin's Argument P, in Section III of his Opening Brief on appeal, contains the main allegations in this claim, but only alleges a violation of due process. Catlin's state habeas petition presents the same legal grounds as alleged in his federal petition, and there incorporates by reference the relevant arguments, including the allegation regarding the letter from Bethesda Naval Hospital, from his direct appeal brief. The incorporation into his state habeas petition of the allegations from Catlin's Opening Brief on direct appeal, which was still pending when the state habeas petition was filed, was sufficient to fairly present this claim to the state court. Claim 22 is exhausted.

Claim 24. The parties do not state their position on subclaims A and E. Subclaim A is an identical copy of Section VIII, Argument A, presented in Catlin's state habeas petition, starting at page 96. Subclaim E is almost an identical copy of Section VIII, Argument E, presented in Catlin's state habeas petition, starting at page 105. Subclaims A and E were fairly presented to the state court. The following portions of subclaims are unexhausted: B (with regard to the Eighth Amendment), C (with regard to the Sixth and Eighth Amendments), D (with regard to the Sixth Amendment), and F (with regard to the Sixth and Eighth Amendments). The remaining legal grounds are exhausted.

Claim 25. The parties agree this claim is unexhausted to the extent it relies on the Eighth and Fourteenth Amendments, but do not agree regarding the status of the remainder of the claim. The Warden alleges the claim is unexhausted to the extent it is predicated on grounds not presented in state court, such as the Fifth Amendment. Catlin asserts the Fifth Amendment legal ground supporting this claim is exhausted in the Appellant's Opening Brief at page 203. With the exception of paragraphs 12 through 14*fn2, Claim 25 is almost an identical copy of Section V presented in Catlin's Opening Brief on appeal, starting at page 198. Paragraph 12 asserts the conflict of interest claim presented here deprived Catlin on his right to a fair trial, due process, the effective assistance of counsel, conflict-free representation, to confront witnesses, to a reliable trial and sentence, and to be free from cruel and unusual punishment. Except to the extent that Claim 25 relies on the Eighth and Fourteenth Amendments, the facts and remaining legal grounds were fairly presented to the state court.

Claim 26. The parties do not agree regarding the exhaustion status of most of this claim. The portions of this claim that the parties do agree on are as follows: subclaim Q is exhausted and subclaim P is unexhausted. The parties also agree that the following legal grounds are unexhausted: subclaims B and E (Fifth Amendment); subclaims J and K (Fifth and Eighth Amendments); and subclaim N (Eighth Amendment). The parties state they do not agree regarding the exhaustion status for the remainder of this claim. The parties do not present their positions regarding the exhaustion status of subclaims A, C, E (except regarding the Fifth Amendment), G, J and K (except regarding the Fifth and Eighth Amendments), O and R. Subclaim A is almost an identical copy of Claim XIIA, presented in Catlin's state petition at pages 183-196 (¶¶ 380- 409), except for paragraphs 30 and 31 (which incorporate the allegations in the remainder of the petition and assert the alleged constitutional violation requires reversal without meeting the prejudice standard of Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993), but contends there is prejudice sufficient to satisfy Brecht). Subclaim A was fairly presented to the state and is exhausted. The Warden alleges subclaim B is unexhausted regarding the Eighth and Fourteenth Amendments. Catlin asserts that subclaim B is exhausted as to the Eighth and Fourteenth Amendments legal grounds in the state petition at page 200. Catlin is correct; subclaim B is exhausted as to the Sixth, Eighth and Fourteenth Amendments. The parties agree this claim is unexhausted regarding the Fifth Amendment.

The facts and legal grounds supporting subclaim C were presented in Catlin's state petition in Claim XII-E(1), at pages 220-226, except for paragraphs 14 and 15 (which incorporate the allegations in the remainder of the petition and assert the alleged constitutional violation requires reversal without meeting the prejudice standard of Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993), but contends there is ...


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