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Sullivan v. Evans

February 8, 2010

EDWARD P. SULLIVAN, PETITIONER,
v.
EVANS, RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2006 judgment of conviction and sentence entered in the Butte County Superior Court on six counts of second degree robbery following his guilty plea. (Petition at 1; Resp't Reply at 1.) Petitioner is serving a state prison sentence of ten years. (Petition at 1.) Before the court is respondent's motion to dismiss the petition based on petitioner's alleged failure to exhaust his federal habeas claims by first presenting then to the California Supreme Court.

I. The Parties' Arguments

Respondent asserts that the only appeal or collateral attack on his conviction filed by petitioner with the California Supreme Court, was a single petition for writ of habeas corpus. That state habeas petition was denied by the California Supreme Court with a citation to the decision in People v. Duvall, 9 Cal. 4th 464, 474 (1995). According to respondent, because a citation to Duvall means that petitioner failed to present his claims with sufficient particularity, petitioner was required to file a new habeas petition with the California Supreme Court wherein he re-alleged his claims with greater particularity and with supporting evidence. Having failed to do so, petitioner's claims are unexhausted according to respondent.

Petitioner argues that in his state habeas petition he presented the California Supreme Court with all the facts necessary to state a claim for relief and that he has therefore exhausted state court remedies. According to petitioner, in both his habeas petitions filed with the California Supreme Court and to this court, he has claimed that the trial court erred in imposing an aggravated and consecutive term of imprisonment in his case based on facts that he neither admitted to in his plea bargain nor were found true by a jury. Petitioner points out that in his habeas petition filed with the California Supreme Court, he alleged as follows:

Claim One: The trial court erred in imposing an aggravated term of imprisonment based upon facts neither alleged in the information nor found true by a jury beyond a reasonable doubt. Supporting facts: In imposing an aggravated term in this case, the trial court justified it's [sic] decision based on judicial findings that the crime involved the threat of great bodily injury, appellant was armed with a weapon, the crime was premeditated and the crime involved violence. Appellant did not admit to those factors in his plea agreement nor was appellant afforded an opportunity to have such factors submitted to a jury to be determined beyond a reasonable doubt.

Imposition of an aggravated sentence based on facts neither admitted to by appellant nor found true by the jury beyond a reasonable doubt violated appellant's constitutional rights to a jury trial and to have each factor used to increase or enhance his sentence proven beyond a reasonable doubt. The error was prejudicial. The trial court failed to articulate a single statutory aggravating factor admitted to by appellant to justify imposition of the aggravated term.

Claim Two: The trial court erred in imposeing [sic] consecutive terms of imprisonment based on facts neither alleged in the information nor found true by a jury beyond a reasonable doubt. Supporting facts: In imposeing [sic] consequetive [sic] terms in this case the trial court noted the crimes and their objectives were predomaintly [sic] independent of each other, the crimes involved separate [sic] acts of violence or threats of violence, and the crimes were committed at different locations. Not one of these factors was admitted to by the appellant in his plea. The basis for the trial courts [sic] decision to impose consecutive, rather then [sic] concurrent terms of imprisonment, were neither submitted to nor found true by a jury beyond a reasonable doubt. The trial court erred in imposeing [sic] consecutive terms. To impose consecutive terms, the trial court is obligated to state it's [sic] findings on the record why such a term is necessary. This was not done here.

Had the trial court not considered these factors in aggrevation [sic], it would not have been in a postion [sic] to impose consecutive terms. The error was prejudicial and certainly not harmless beyond a reasonable doubt. There fore [sic] this court should reverse.

(Lod. Doc. 1 at 3-4.)

Petitioner argues that the California Supreme Court's citation to Duvall in denying him relief simply means that "the court was not of the opinion that Sullivan had made a prima facie showing for relief. Not that he had failed to exhaust. [sic]" (Opp'n at 3.)

In reply, respondent argues that the California Supreme Court's citation to Duvall signaled that the defects in petitioner's state habeas petition could be remedied. (Reply at 2.) Respondent points out that petitioner's two claims for state habeas relief were supported by only two paragraphs of alleged facts and that petitioner did not attach any evidence to his state petition in support of his claims. (Id.) Respondent contends that because petitioner could have re-alleged his claims with greater particularity and submitted any supporting evidence in existence, his state petition was not adequate to satisfy the exhaustion requirement. (Id.)

II. The Exhaustion of State Remedies Requirement

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 ...


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