The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION; ORDER DENYING MOTION TO STAY; AND ORDER GRANTING MOTION TO DISMISS
Petitioner, a prisoner in state custody, brought a petition for writ of habeas corpus (the "Petition") in this Court, pursuant to 28 U.S.C. § 2254. Respondent moved to dismiss Petition, pointing out Petitioner had not exhausted all claims. Petitioner moved for a stay to permit him to exhaust remedies in state court before proceeding.
Pursuant to 18 U.S.C. § 636(b) and Civil Local Rule 72.1(c) and (d), these matters were referred to Magistrate Judge William McCurine for a report and recommendation. On April 10, 2009, Judge McCurine issued his report and recommendation (the "R&R"). The R&R recommended denying the motion to stay, and dismissing the Petition as mixed but permitting Petitioner to file an amended Petition bringing only exhausted claims. Petitioner filed objections (the "Objections").
A district court has jurisdiction to review a Magistrate Judge's report and recommendation concerning a dispositive pretrial motion. Fed. R. Civ. P. 72(b). "The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Id.; see also 28 U.S.C. § 636(b)(1)(C). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Thus, this Court must review those parts of the report and recommendation to which a party has filed a written objection.
Neither party objected to the R&R's statement of facts, which the Court therefore ADOPTS, with modifications as set forth below. As the R&R explains, Petitioner now raises two claims he did not present either on appeal or in state habeas proceedings. He argues first that the state trial court failed to sentence him in accordance with California's sentencing laws, and second that his trial was tainted by prosecutorial misconduct. The alleged misconduct consisted of introducing false evidence and wrongly preventing a witness from testifying in Petitioner's favor. (Pet. at 6.) In part, Petitioner's unexhausted claims attempt to recast two exhausted evidentiary claims as prosecutorial misconduct claims. However, a claim is only exhausted where the petitioner has presented the state's highest court with the same factual basis and federal legal theories; mere similarity of claims is insufficient to exhaust. Gray v. Netherland, 518 U.S. 152, 162--63 (1996); Duncan v. Henry, 513 U.S. 364, 366 (1995); Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1148--49 (9th Cir. 2007). Petitioner does not contest the R&R's finding that he failed to exhaust these two claims in state court, but contends his failure to exhaust before filing his federal Petition was caused by ineffective assistance of counsel, which should not be attributed to him. The Petition is thus "mixed," meaning some claims are exhausted and some are unexhausted.
The stay-and-abeyance procedure is an exercise of the Court's equitable powers. Pliler v. Ford, 542 U.S. 225, 234 (2004) (O'Connor, J., concurring). The Court should ordinarily exercise its discretion to stay a mixed petition where there is good cause for a petitioner's failure to exhaust, the unexhausted claims are potentially meritorious, and the petitioner engaged in no intentionally dilatory litigation tactics. Rhines v. Weber, 544 U.S. 269, 278 (2005). Petitioner is required to demonstrate that these conditions are met. Jackson v. Roe, 425 F.3d 654, 662 (9th Cir. 2005) (citing Akins v. Kenney, 410 F.3d 451, 456 (8th Cir. 2005)). If the Court finds a stay inappropriate, it should afford Petitioner an opportunity to amend his Petition to delete the unexhausted claims before dismissing the action altogether. See Rose v. Lundy, 455 U.S. 509, 520 (1982).
The R&R sets forth the procedural history up to the point Petitioner filed his Petition in this Court. Petitioner was convicted on July 22, 2005. California's Court of Appeal affirmed the judgment on August 24, 2007, and the California Supreme Court denied his petition for review on November 28, 2007. Petitioner then filed his Petition in this Court on October 27, 2008. On November 4, the court issued a notice informing Petitioner of the possible failure to exhaust his claims, and AEDPA's one-year limitations period.
Petitioner then began attempting to exhaust the remaining two claims. Petitioner's lodgment (Pet'r's Notice of Lodgment, Docket no. 10, referencing case number S169701) attaches a petition he filed in the California Supreme Court, which in turn mentions a petition he filed in the California Court of Appeal. (Id., Docket no. 10-2 at 9 (referencing case number D054200).) On August 19, 2009, Petitioner asked the Court to take judicial notice of the order of the California Supreme Court dated June 17, 2009, denying his petition. Pursuant to Fed. R. Evid. 201, Petitioner's request for notice of the order denying habeas relief is GRANTED. The Court also sua sponte takes notice of the dockets in case numbers D054200 and S169701 for the purpose of showing what Petitioner filed, when he filed it, and what actions the state courts took. See Fed. R. Evid. 201(c); United States v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).
The docket in case number D054200 shows Petitioner filed his petition in the Court of Appeal on December 5, 2008, about a month after this Court warned him about unexhausted claims. The state appellate court denied that petition by minute order on December 24, 2008 because Petitioner had not presented it to the trial court. The docket in case S169701 shows that about a month later, he filed his second petition with the state supreme court, again bypassing the trial court. The state supreme court denied his petition, citing In re Swain, 34 Cal.2d 300, 304 (1949) and People v. Duvall, 9 Cal.4th 464, 474 (1995) but otherwise providing no explanation. The R&R is hereby MODIFIED to include these facts in the procedural history.
The Court cannot grant a stay when the unexhausted claims are "plainly meritless." Rhines, 544 U.S. at 270. Petitioner's first claim, alleging the trial court did not sentence him properly under state law, falls in this category. Purely state law claims are not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 68 (1991). The R&R correctly found Petitioner's first claim did not identify an error so fundamentally unfair as to deny him due process. (See R&R, 8:14--9:4.) The Objections do not address this point.
With regard to his second claim for prosecutorial misconduct, Petitioner argues his counsel's failure to raise these matters on appeal or in state habeas proceedings constitutes good cause. In support of this, he cites Hernandez v. Sullivan, 397 F. Supp. 2d 1205 (C.D.Cal. 2005) and Harris v. Kuhlman, 601 F. Supp. 987 (E.D.N.Y. 1985). The R&R found both cases distinguishable, pointing out he provided no evidence or details of the alleged ineffective assistance of counsel other than merely stating his counsel failed to present his claims. The Objections do not respond to this.
As part of his lodgments, Petitioner included a letter from his appellate counsel, dated October 7, 2008, explaining the reasoning behind the decision not to raise these claims. (Pet'r's Notice of Lodgment, Docket no. 10-2, at 8.) The letter reminds Petitioner they discussed the issue before the first appellate brief was filed. (Id.) The letter recounts several reasons why the issue of allegedly false testimony was not raised on appeal, and concludes that even if there were any reason to think the prosecutor had knowingly offered false testimony, the evidence formed an insignificant part of the case against Petitioner and would not have led the appellate court to reverse the conviction. (Id.) This letter strongly suggests insofar as Petitioner's claim is based on allegations the prosecutor knowingly offered false testimony, it would fail, because it shows Petitioner's own counsel reviewed the record and could not conclude the prosecutor knowingly did so.
With regard to Petitioner's allegation that the prosecutor prevented a witness from testifying truthfully, Petitioner's brief on direct appeal address the details of this, citing the record. (Resp.'s Lodgment 2 at 3--4.) The Court of Appeal's decision confirms these details. (Resp.'s Lodgment 3 at 3.) The discussion on appeal shows what Petitioner has described as prosecutorial misconduct is actually a claim that the jury should not have believed the government's witnesses, one of whom was a prosecutor, when they testified that Petitioner attempted to get his accomplice to falsely confess and take full responsibility ...