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Kriske v. Evans

December 8, 2009



Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 14, 2008, respondent filed an answer to the petition. On March 10, 2009, petitioner filed a traverse. Pending before the court are several of petitioner's motions.


In his petition pending before this court, petitioner challenges his 2005 Sacramento County Superior Court conviction for first-degree burglary, attempted car-jacking, and resisting an executive officer. Petitioner asserts five grounds for relief: (1) ineffective assistance of counsel based upon a failure to present evidence; (2) ineffective assistance of counsel for failure to investigate; (3) ineffective assistance of appellate counsel; (4) the trial court erred in denying petitioner's request to proceed pro se; and (5) the trial court erred in failing to instruct the jury on the defense of voluntary intoxication. (Pet. at 3-8 & Attach. A.)

In the answer to the petition, respondent argues, inter alia, that ground five of the pending petition is unexhausted because petitioner never presented that claim to the California Supreme Court. Respondent also argues that, in any event, the trial court did instruct the jury at petitioner's trial on voluntary intoxication. Respondent contends that evidence of voluntary intoxication is admissible: (1) for specific-intent crimes to determine whether the defendant formed the required specific intent, and (2) for a murder charge. Respondent argues that, contrary to petitioner's assertion, the trial court instructed the jury in his case on the specific intent requirement for burglary and attempted car-jacking and that the jury could consider petitioner's voluntary intoxication in determining whether he harbored specific intent. (Resp't's Answer at 20-21.)


Shortly before filing his traverse, petitioner filed a motion to amend his petition to withdraw ground five. In that motion, petitioner acknowledges that he has not exhausted the claim presented as his ground five for relief. Alternatively, petitioner asks the court to allow him to proceed on the unexhausted claim even though it is unexhausted. Respondent does not oppose petitioner's request to withdraw ground five but argues that the court cannot exempt that claim from the exhaustion requirement.

Petitioner subsequently filed a motion to withdraw his motion to amend, explaining that he would rather exhaust that claim in state court. He also filed a motion to dismiss his petition without prejudice, together with a request for a sixty-day extension of the one-year statute of limitations or, alternatively, a motion for a stay. In response, respondent does not oppose petitioner's request to dismiss his petition but argues that petitioner is not entitled to equitable tolling of the statute of limitations or to a stay and abeyance.


State courts must be given the first opportunity to consider and address a state prisoner's habeas corpus claims. See Rhines v. Weber, 544 U.S. 269, 273-74 (2005) (citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) ("Habeas petitioners have long been required to adjudicate their claims in state court - that is, 'exhaust' them - before seeking relief in federal court."); Farmer v. Baldwin, 497 F.3d 1050, 1053 (9th Cir. 2007) ("This so-called 'exhaustion requirement' is intended to afford 'the state courts a meaningful opportunity to consider allegations of legal error' before a federal habeas court may review a prisoner's claims.") (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). In general, a federal court will not grant a state prisoner's application for a writ of habeas corpus unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1). A state will not be deemed to have waived the exhaustion requirement unless the state, through counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(3).

A petitioner satisfies the exhaustion requirement by fairly presenting to the highest state court all federal claims before presenting the claims to the federal court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008). A federal claim is fairly presented if the petitioner has described the operative facts and the federal legal theory upon which his claim is based. See Wooten, 540 F.3d at 1025 ("Fair presentation requires that a state's highest court has 'a fair opportunity to consider . . . and to correct [the] asserted constitutional defect.'"); Lounsbury v. Thompson, 374 F.3d 785, 787 (9th Cir. 2004) (same) (quoting Picard, 404 U.S. at 276)); Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1146 (9th Cir. 2007); Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999); see also Bland v. California Dep't of Corrs., 20 F.3d 1469, 1473 (9th Cir. 1994).

In this case, the parties do not dispute that the claim presented as ground five of the petition pending before this court is unexhausted. A federal court cannot grant habeas relief based on a "mixed petition." However, as both parties acknowledge, stay and abeyance procedures are available to habeas petitioners who wish to exhaust their unexhausted claims in state court without first dismissing their entire petition. See Rhines, 544 U.S. 269; King, 564 F.3d 1133.


The United States Court of Appeals for the Ninth Circuit recently analyzed the two procedures available to habeas petitioners who wish to proceed with exhausted and unexhausted claims for relief. See King, 564 F.3d 1133. First, the Ninth Circuit explained "the Kelly procedure," which it had outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). Under the three-step Kelly procedure, (1) the petitioner amends his petition to delete any unexhausted claims, (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing petitioner the opportunity to proceed to state court to exhaust the deleted claims, and (3) petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition.

King, 564 F.3d at 1135. A petitioner who elects to proceed under the Kelly procedure will be able to amend his petition with his newly exhausted claims if they are timely. If a petitioner's newly-exhausted claims are untimely, he will only be able to amend his petition to include them if they share a "common core of operative facts" with the claims in his original petition. In this regard, the Kelly procedure, unlike the alternative procedure discussed below, is a riskier one for a habeas petitioner because it does not protect a petitioner's unexhausted claims from expiring during a stay. See King, 564 F.3d at 1140-41. See also Duncan v. ...

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