The opinion of the court was delivered by: Present: Hon. Arthur Nakazato, United States Magistrate Judge
(In Chambers - No Appearances)
Melissa Cash None Deputy Clerk Court Reporter
Proceedings: Respondent's motion to dismiss (dkt. 7) and Order to Show Cause thereon ("OSC")
Rulings: Respondent shall have until May 6, 2010, to file and serve either: (1) a response to this OSC; or (2) a notice of withdrawal of the motion to dismiss. If the motion to dismiss is withdrawn, Respondent shall file and serve his Answer to the Petition on or before June 3, 2010, and Petitioner must file his Reply by July 8, 2010. Alternatively, if the motion to dismiss is not withdrawn and Respondent elects to file a response to this OSC, the court will consider Respondent's response to determine how to proceed. Petitioner's time to file and serve an opposition to the motion to dismiss is stayed until the court directs otherwise.
On April 13, 2010, Respondent filed his pending motion to dismiss the Petition. The motion to dismiss is electronically signed by deputy attorney general E. Carlos Dominguez, one of Respondent's counsel of record in this matter. By signing and presenting the motion to the court, Dominguez certified the motion was not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation, that it is based upon non-frivolous arguments, and that the factual contentions have evidentiary support. See Rule*fn1 11(b) (1)-(3).
Respondent's motion is made on the basis that the entire Petition is subject to dismissal as an unexhausted petition because none of the six claims are exhausted. (Motion to Dismiss at 1, 5, 11.) However, the court's preliminary review of the motion to dismiss shows this argument is frivolous for the reasons explained below. Under the circumstances, the court feels compelled to make its tentative findings known to the parties, particularly before Petitioner is required to spend time preparing a response, and to request Respondent to show cause why a Rule 11 hearing should not be convened in the event the motion to dismiss is not withdrawn.
The Petition raises six grounds for federal habeas relief, which Petitioner describes in a very clear and concise manner. (Pet., ¶ 7.) The Petition establishes grounds 4, 5, and 6 were exhausted on direct review. (Id.) Moreover, the petition for review (Lodged Doc. 4) that Petitioner filed with the California Supreme Court also confirms these claims were exhausted on direct review. Consequently, it plainly appears the Petition is, at best, a mixed petition; not a fully unexhausted petition as Respondent contends.
But this is not the only problem. Respondent principally contends the entire Petition must be dismissed as an unexhausted petition because grounds 1, 2, and 3 are unexhausted to the extent these claims were presented to the California Supreme Court on collateral review in a procedurally defective manner.
Petitioner filed four habeas petitions with the state courts; the first petition was filed with the superior court, the second and third petitions were filed with the court of appeal, and the fourth petition was filed with the state high court. The fourth petition filed with the state high court establishes Petitioner presented grounds 1, 2, and 3, respectively, as follows: (1) "Petitioner's federal constitutional right to effective assistance of counsel during trial was denied where trial counsel failed to impeach prosecutor's percipient witnesses[;]" (2) "Petitioner's federal constitutional right to effective assistance of counsel was denied where counsel failed to investigate[;]" and (3) "Petitioner's federal constitutional right to effective assistance of counsel on appeal was violated where counsel on appeal failed to raise the claims in grounds 1 and 2 inclusive." (6/18/09 State Habeas Pet. (Lodged Doc. 12), ¶ 6.) Further, below each ground, Petitioner set forth the operative facts in an equally clear and precise manner. (Id.) The state high court denied the fourth petition without comment. (11/10/09 Order (Lodged Doc. 13).)
Respondent's argument that grounds 1, 2 and 3 are unexhausted is based upon the following contention. Under Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590 (1991), this court must look through the state high court's silent denial of the fourth habeas petition and review the lower state courts' orders to determine why they denied the first, second, and third habeas petitions. (Motion to Dismiss at 5-8.) Respondent contends the superior court denied the first petition, and "the California Court of Appeal denied Petitioner's [second and third] habeas petitions on the ground that his claims were not pled with particularity," based upon citations to In re Clark, 5 Cal. 4th 750, 765-67 (1993), In re Swain, 34 Cal. 2d 300, 304 (1949) and People v. Duvall, 9 Cal. 4th 464, 474 (1995). (Id. at 6.) Respondent argues grounds 1, 2, and 3 are unexhausted because Clark, Swain and Duvall denials involve correctable procedural defects.
However, there are several factual and legal flaws with Respondent's contention that grounds 1, 2 and 3 are unexhausted.
First, only Petitioner's fourth state habeas petition raised grounds 1, 2 and 3; the first, second and third state habeas petitions only raised grounds 1 and 2. Accordingly, the state high court's silent denial of ground 3 means this claim was denied on the merits, only leaving ...