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Ross v. Sisto


July 22, 2010


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge



Petitioner, a state prisoner proceeding pro se, has filed a petition pursuant to 28 U.S.C. § 2254. Petitioner challenges California Governor Arnold Schwarzenegger's reversal of the May 22, 2006 decision by the Board of Parole Hearings (hereinafter Board) finding petitioner suitable for parole. He claims that the Governor's action violated his rights to due process and equal protection. Upon careful consideration of the applicable law, the undersigned will recommend that respondent's motion to dismiss be denied and petitioner given the opportunity to exhaust the new factual basis for his claims in the California Supreme Court.


In 1985, petitioner pled guilty to second degree murder and was sentenced to 15 years to life in state prison. (Doc. 1 (hereinafter Pet.) at 1.) On May 22, 2006, at his eighth parole hearing, the Board found petitioner suitable for parole. (Pet. at 102, 106*fn1.) The Board concluded that "the negative aspects [of petitioner's crime 21 years earlier] are outweighed by the period of time that you've been in custody... and the fact that you've put that time to productive use." (Id. at 101.) It noted petitioner's "minimal disciplinary history" and "maturation, growth... [and] sincere expressions of remorse." (Id. at 102.) Having noted that his pre-commitment crimes were "all the result of you apparently abusing alcohol" (id. at 100), the Board recognized that petitioner had "consistently involved yourself in programs addressing the use of alcohol, either AA or Christian based 12 step program [and] appear to have adopted attendance of those programs[.]" (Id. at 101.)

The Board also found "indications that if released you will have a high likelihood of succeeding on parole." (Id. at 102.) These included petitioner's "change in attitude that would reside [sic] in good citizenship," his parole plans of living with family in Redding, and his relationship with a woman he had known for many years. (Id.) "What's critically important," the Board concluded, "... [is] you absolutely have to stay away from alcohol." (Id. at 103.) Accordingly, the Board granted parole on the "special conditions" that petitioner not use any alcoholic beverages, and that he submit to alcohol testing by his parole officer or other law enforcement and continue to participate in a substance abuse program. (Id. at 104-105.)

On October 10, 2006, Governor Arnold Schwarzenegger reversed the Board's grant of parole. In his written decision (Pet. at 154-155 (hereinafter, 2006 decision)), the Governor summarized his reasons for reversal as follows:

I have considered various positive factors in reviewing whether Mr. Ross is suitable for parole at this time. [Cites petitioner's vocational training, institutional jobs, self-help and therapy including programs for alcohol addiction, close ties with family and friends, positive evaluations from mental health and corrections professionals, and plans to live and work with a family upon release.

Despite the positive factors I have considered, the second-degree murder for which Mr. Ross was convicted was extremely brutal and callous... The gravity of the second-degree murder perpetrated by Mr. Ross is alone sufficient for me to conclude presently that his release from prison would pose an unreasonable public-safety risk.... [H]e has a lengthy adult criminal record. Mr. Ross's criminal history, which includes incidents of violent and assaultive behavior, demonstrates his inability or unwillingness to conform his behavior to the rules of free society and weighs against his parole suitability at this time.... [G]iven the current record before me, and after carefully considering the very same factors the Board must consider, I find that the negative factors weighing against Mr. Ross's parole suitability presently outweigh the positive ones. Accordingly, and because I believe his release would pose an unreasonable risk of danger to society, I REVERSE the Board's 2006 decision to grant parole to Mr. Ross.

The 2006 decision triggered a lengthy course of litigation in the state courts in which petitioner challenged the Governor's decision and sought his release pursuant to the Board's grant of parole. As described below, his efforts met with some success. Most pertinent here are petitioner's first habeas petition to the California Supreme Court; the Court of Appeal's grant of a subsequent habeas petition in In re Ross, 170 Cal. App. 4th 1490 (2009); petitioner's second habeas petition to the California Supreme Court; and the Governor's revised decision, again reversing petitioner's 2006 grant of parole, which issued in 2009 as a direct result of petitioner's legal challenges to the 2006 decision. These events and their context are described below.

A. First Petition to the Supreme Court

On November 20, 2006, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District, challenging the Governor's 2006 decision. (Pet. at 109-122.) On December 21, 2006, the Court of Appeal denied this petition for failure to first seek relief in the trial court. See Ross, supra, 170 Cal. App. 4th at 1496-1497 (summarizing procedural history of Ross litigation) (also attached as Motion to Dismiss (Doc. 12, hereinafter MTD), Ex. 4.)

On January 4, 2007, petitioner filed a habeas petition in the California Supreme Court, incorporating by reference his earlier petition to the Court of Appeal. (Pet. at 28-32; 109-122.) On March 21, 2007, the Supreme Court granted this petition and ordered the Court of Appeal to vacate its summary denial and issue "an order to show cause, returnable before the Shasta County Superior Court[,]" requiring the Director of Corrections and Rehabilitation to show cause "why the Governor did not abuse his discretion in reversing" the Board's 2006 grant of parole "and why petitioner remains a danger to public safety." (MTD, Ex. 2).

This first, successful habeas petition to the California Supreme Court bears reviewing in some detail. In it, petitioner cited federal authority in claiming that the Governor improperly relied solely on petitioner's pre-prison record as the basis for finding him unsuitable for parole. (Pet. at 116.) Also citing federal authority, he argued that the Governor improperly based his denial of parole on the "unchanged circumstances" of petitioner's crime without factoring in petitioner's behavior in prison and present danger to society. (Pet. at 120-121.) In attached materials labeled "Exhibit A," petitioner included a recent federal opinion in support of his argument that the Governor violated his due process rights by basing the decision to deny parole on petitioner's crime and pre-imprisonment criminal history. (Pet. at 113 (incorporating Exhibit A), 133-138 (letter to Governor and attached case).)

Petitioner further alleged to the Supreme Court that the Governor improperly disregarded (1) the 2004 finding of a forensic psychologist that petitioner posed a low risk to society; (2) "current laws providing for an individual consideration" of an inmate's suitability for parole; and (3) petitioner's "liberty interest," instead relying on "immutable facts, such as the triggering crime[.]" (Pet. at 30.)

As directed by the Supreme Court, the Court of Appeal issued an order to show cause to the Director of Corrections and Rehabilitation, returnable before the Shasta County Superior Court. Ross, 170 Cal. App. 4th at 1496. On September 12, 2007, "[t]he superior court denied the petition for writ of habeas corpus, ruling that the Governor's decision was supported by defendant's criminal history and the nature of his crime." Id. (See MTD, Ex. 3.)

B. Court of Appeal's Habeas Grant and Remand

On October 30, 2007, petitioner filed another petition for writ of habeas corpus with the Court of Appeal. Id. The Court of Appeal issued an order to show cause on February 7, 2008. Thereafter, the California Supreme Court decided In re Lawrence (2008) 44 Cal.4th 1181, 82 Cal.Rptr.3d 169, 190 P.3d 535 (hereafter Lawrence ) and In re Shaputis (2008) 44 Cal.4th 1241, 82 Cal.Rptr.3d 213, 190 P.3d 573, clarifying its decisions in In re Rosenkrantz (2002) 29 Cal.4th 616, 128 Cal.Rptr.2d 104, 59 P.3d 174 (hereafter Rosenkrantz ) and In re Dannenberg (2005) 34 Cal.4th 1061, 23 Cal.Rptr.3d 417, 104 P.3d 783 and the limits on the Governor's broad discretion to deny parole.

Id. at 1496-1497. The parties submitted supplemental briefing addressing the impact of these decisions on petitioner's writ. Id. at 1497.

On February 10, 2009, the Court of Appeal held that the 2006 decision was supported by "some evidence" that petitioner was unsuitable for parole, as required by law. Id. However, it also concluded that, under the Supreme Court's recent holding in Lawrence, "the Governor's written decision is flawed because it does not contain a more explicit 'articulation of a rational nexus between th[e] facts and current dangerousness.'" Id. (citing Lawrence, supra, 44 Cal. 4th at 1227). On this basis, the Court of Appeal granted the habeas petition and remanded the matter to the Governor with instructions to vacate his 2006 decision "which reversed the Board's finding in 2006 that defendant was suitable for parole, and to reconsider the matter consistent with the standards articulated in Lawrence[.]" Id. at 1515.

Significantly, although issued in 2009, the Court of Appeal's opinion in In re Ross repeatedly notes that the issue is whether the Governor properly evaluated petitioner's suitability for parole in 2006. See id. at 1497 (summarizing "evidence supporting the Governor's finding that defendant was unsuitable for parole in 2006"); id. at 1508 (considering whether "defendant would be a danger to public safety if he were released on parole in 2006" or "if granted parole in 2006"); id. at 1510 (considering "whether defendant remained a threat to public safety in 2006" or "presented a current danger to public safety if paroled in 2006"); id. at 1511 (same); id. at 1512 (same); see also id. at 1501 (describing petitioner's "most recent psychological evaluation, prepared in December 2004" and "life prisoner evaluation report prepared in 2005"); id. at 1502 (concluding summary of relevant evidence with petitioner's behavior at his "parole hearing in 2006").*fn2

"We reiterate," the Court wrote, "that the Governor had to base his decision on the same factors that restricted the Board's discretion in determining whether a life-term inmate 'will pose an unreasonable risk of danger to society if released from prison [citation], but that the Governor had the 'discretion to be more stringent or cautious.'" Id. at 1512 (citing Lawrence, supra, 44 Cal. 4th at 1204.); see also id. at 1505 ("In reviewing the Board's finding, the Governor's decision must be based upon the same factors that restrict the Board in rendering its parole decision... in light of the full record before the Board or Governor") (internal citations omitted).

This emphasis is notable in light of the fact that the Governor's revised decision, described below, drew liberally on materials post-dating the 2006 Board hearing.

C. Second Petition to the Supreme Court

In a second habeas petition to the California Supreme Court filed on March 20, 2009, petitioner challenged the Court of Appeal's decision in In re Ross. (MTD, Ex. 6.) In it, he urged that the Court of Appeal had improperly "salvage[d]" the 2006 decision by "scouring the record for evidence never relied on" by the Governor in order to meet the "some evidence" standard. (Id. at 5, 8.) He also argued that, because the Court of Appeal found the 2006 decision legally insufficient, the proper remedy was to reinstate the Board's grant of parole, not remand to the Governor for a new decision. (Id. at 6-8, 17.)

D. Governor's 2009 Decision

On April 9, 2009, while this second habeas petition to the Supreme Court was pending, the Governor vacated the 2006 decision and issued a new decision, also reversing the Board's 2006 grant of parole. (Pet. at 150-153 (hereinafter, 2009 decision).) Per the Court of Appeal's instruction, the 2009 decision explained in greater detail why the Governor found petitioner to pose an unreasonable risk to society if released. It concluded:

The gravity of the crime, when considered with Mr. Ross' history of violence and substance abuse, and the information showing that he minimizes his life offense, that he lacks understanding regarding the circumstances of his crime and his responsibility for the offense, that his substance abuse increases his risk of crime and violence but he lacks an adequate plan for addressing his substance abuse, and also his evaluations showing a continued risk of recidivism, all indicate to me that he has not addressed the risk factors and causal factors that led to the prior crime and violence, and that he still poses a risk of violence if released.... This information, along with the risk assessment contained in his most recent mental-health evaluation, indicates to me that Mr. Ross still poses a risk of recidivism and violence, and that his release from prison at this time would pose an unreasonable risk of public safety. (Id. at 152-153) (emphasis added).

Indeed, the most substantial addition to the 2009 decision -- which in part replicated the language of the 2006 decision -- was a lengthy discussion of a 2008 mental health evaluation of petitioner. (Id. at 151-152.) This evaluation, the Governor stated, "indicates that Mr. Ross still lacks understanding of his responsibility for the murder and the gravity of his offense" (id. at 151), "raises additional concerns," and "provides further evidence indicating that Mr. Ross continues to pose a risk of violence if released." (Id. at 152.) The Governor also cited, as evidence of petitioner's current danger to society, the Board's conclusion at a 2008 hearing that petitioner's crime was "committed in an especially heinous, atrocious and cruel manner" (id. at 151); the fact that petitioner was "counseled twice for other misconduct, most recently in 2008" (id.) and the fact that petitioner's "parole plans have not been confirmed since 2006 [and] there is no way to know whether his plans are viable at this time."*fn3 (Id.) Thus, the Governor concludes, "given the current record before me..., I believe his release from prison would pose an unreasonable risk of danger to society at this time. Accordingly, I reverse the Board's 2006 decision to grant parole to Mr. Ross." Id. at 153 (emphasis added).

On June 12, 2009, a few months after the 2009 decision issued, the California Supreme Court summarily denied petitioner's habeas challenge to the Court of Appeal's decision in In re Ross. (MTD, Ex. 7.) On August 31, 2009, petitioner filed the instant federal habeas petition.


A. Petitioner's Claims

In the instant Petition, petitioner does not specify whether his claims apply to the 2006 decision or 2009 decision. They are worded broadly enough to apply to both, or either.

In any event, petitioner claims that "the Governor's decision to reverse the board" violates his right to due process because the Governor "disregards" the finding by Dr. Preston Davis in petitioner's December 2004 psychological evaluation that petitioner shows "a low risk of danger to society." (Pet. at 5, 7; see also id. at 68 (describing Davis findings).) Similarly, petitioner claims that the Governor's decision violates due process because it "disregards" the Board's conclusion in 2006 that petitioner was "no longer a threat to society." (Id. at 5, 7-9; see also id. at 102.) Third, petitioner claims that "the Governor's reversal" violates his due process and equal protection rights because "petitioner has met and exceeded the factors [under state law] to be found suitable for parole" and the Governor's decision is "arbitrary and capricious[.]" (Id. at 6, 9.) Fourth, petitioner claims that the Governor improperly relied on "unchanging, immutable factors such as petitioner's triggering offense and pre-prison record" in violation of due process. (Id. at 6, 10.) Petitioner also claims, more generally, that "the Governor must explain the basis of [his] decision" and that the state violated his liberty interest in parole. (Id. at 13-17.)

B. Motion to Dismiss

Respondent moves for dismissal of the petition on the grounds that petitioner lacks standing to challenge the 2006 decision and, whether the petition challenges the 2006 or 2009 decision, petitioner has failed to exhaust state remedies. (MTD at 4-6.) The undersigned addresses these points in turn.

1. Standing

Respondent argues correctly that petitioner has the burden of showing that the federal court has jurisdiction over his claims. (MTD at 4, citing United States v. Hayes, 515 U.S. 737, 742, 115 S.Ct. 2431 (1995).)

"[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy." City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 1665 (1983); Jones v. City of Los Angeles, 444 F.3d 1118, 1126 (9th Cir. 2006). "Abstract injury is not enough." Lyons, 461 U.S. at 101, 103 S.Ct. at 1665. "[P]laintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical." Id. "The key issue is whether the plaintiff is 'likely to suffer future injury.' " Jones, 444 F.3d at 1126 (quoting Lyons at 105, 1667).

Respondent argues that petitioner lacks standing to raise the instant claims insofar as they challenge the 2006 decision, because that decision has been vacated. (MTD at 4.) Be that as it may -- and the issue is really one of mootness -- the undersigned finds that petitioner has standing to challenge the 2009 decision, itself a revision of the 2006 decision, currently in effect.

Clearly, petitioner has been injured by the 2009 decision: He is still in prison, despite the Board's 2006 grant of parole. Thus, he has alleged a case or controversy.

2. Exhaustion

Respondent correctly states that, to exhaust his state court remedies, petitioner must provide the state's supreme court with "a full and fair opportunity to consider his federal claims on the merits." (MTD at 4, quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509 (1971).) As the Ninth Circuit has held:

The federal habeas petitioner must "provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982). "It is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made." Id. (internal citations omitted). In order to satisfy the exhaustion requirement, the petitioner must have fairly presented the substance of his federal claim to the state courts. Id.; see also Hudson v. Rushen, 686 F.2d 826, 830 (9th Cir.1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1896, 77 L.Ed.2d 285 (1983). A federal claim "is fairly presented if the petitioner has described the operative facts and legal theory upon which his claim is based." Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir.1986).

Bland v. California Dept. of Corrections, 20 F.3d 1469, 1472-1473 (9th Cir. 1994), overruled on other grounds by Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000). The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent's counsel.

28 U.S.C. § 2254(b)(3).

Respondent is also correct that petitioner has the burden of proving exhaustion of state court remedies, and unexhausted claims must be dismissed. (MTD at 5, citing Gonzales v. Stone, 546 F.2d 807, 808 (9th Cir. 1976); also citing Cartwright v. Cupp. 650 F.2d 1103, 1104 (9th Cir. 1981)).

Respondent argues that petitioner has not exhausted his claims challenging the 2006 decision because one of his petitions to the California Supreme Court while that decision was in effect challenged only the relief granted by the California Court of Appeal. (MTD at 5.) This argument ignores the fact that, in his first habeas petition to the California Supreme Court, petitioner raised challenges to the 2006 decision nearly identical to those in the instant petition. (Pet. at 28-32; see also id. at 109-122.) Indeed, the Supreme Court granted this petition, spurring additional rounds of litigation, including petitioner's second habeas petition to the Supreme Court, which -- as respondent notes -- mainly concerned issues of relief. (MTD at 5.)

Respondent next argues that petitioner has not exhausted his claims challenging the 2009 decision, reasoning: "Ross has not shown that he raised any challenge to the Governor's 2009 decision in the California Supreme Court. Any claims regarding the Governor's 2009 decision are therefore likewise unexhausted and must be dismissed." (MTD at 5.)

This argument has a certain logical appeal. Because petitioner filed his second habeas petition to the California Supreme Court roughly three weeks before the Governor issued the 2009 decision, he certainly did not challenge the Governor's specific, new bases for reversing the Board's 2006 grant of parole in the California Supreme Court. In some sense, then, his claims as to the 2009 decision are unexhausted.

However, the undersigned is not persuaded that petitioner's instant claims should be dismissed for failure to exhaust. This case presents a unique procedural backdrop: a petitioner who has diligently and consistently challenged on constitutional grounds the Governor's reversal of his 2006 grant of parole; the partial success of those claims in both the California Supreme Court and California Court of Appeal; the issuance of a revised gubernatorial decision, again reversing petitioner's 2006 grant of parole, as a direct result of petitioner's legal challenges to the original decision; and finally, the fact that the 2009 decision appears on its face to disregard the Court of Appeal's strong suggestion that the issue remanded for the Governor's reconsideration was whether petitioner was suitable for parole in 2006, based on evidence before the Board in 2006.

In Vasquez v. Hillery, 474 U.S. 254, 257-258, 106 S.Ct. 617 (1986), the Supreme Court held that "supplement[ation] and clarif[ication] of the state-court record" on federal habeas review does not "evade[] the exhaustion requirement where the prisoner has presented the substance of his claim to the state courts." There, the new factual evidence consisted of several affidavits and a computer-generated mathematical analysis bearing on petitioner's claim that blacks had been systematically excluded from the grand jury that indicted him. Id. at 258-259. As the District Court's "request for more information was evidently motivated by a responsible concern that it provide... meaningful federal review of [petitioner's] constitutional claims" and the prisoner had not "attempted to expedite federal review by deliberately withholding essential facts from the state courts," the Supreme Court held that this "supplemental evidence... did not fundamentally alter the legal claim already considered by the state courts[.]" Id. at 260.

Similarly, the Ninth Circuit has held that "as long as the 'ultimate question for disposition' has remained the same in state and federal court,... 'variations in the legal theory or factual allegations urged in its support' are entirely legitimate." Robinson v. Schriro, 595 F.2d 1086, 1102 n.14 (9th Cir. 2010) (citing Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509 (1971); accord Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir.2007); McKinney v. Artuz, 326 F.3d 87, 97 (2d Cir. 2003); Boyko v. Parke, 259 F.3d 781, 788-89 (7th Cir.2001); Weaver v. Thompson, 197 F.3d 359, 364-65 (9th Cir.1999)).

In Weaver, supra, 197 F.3d at 364, petitioner "consistently pressed" the claim that his trial was tainted by bailiff and/or juror misconduct. Nearly six years after the trial, the federal court held an evidentiary hearing and granted the habeas petition on the ground that the trial court, not the bailiff, had erred. Id. at 362, 364. Respondent urged that petitioner had not exhausted this claim in state court. Id. Calling this "unwarranted hairsplitting," the Ninth Circuit responded:

We acknowledge that the precise factual predicate for Weaver's claim changed after the district court conducted its evidentiary hearing. "However, new factual allegations do not render a claim unexhausted unless they 'fundamentally alter the legal claim already considered by the state courts.' " Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir.1994) (quoting Vasquez v. Hillery, 474 U.S. 254, 260, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986)). The facts adduced at the evidentiary hearing did not "fundamentally alter" Weaver's claim.... Weaver's inability to fully explore what transpired during that incident stemmed from the state courts' refusal to grant him an evidentiary hearing on the matter, rather than from any failure of diligence on his part. The legal basis for Weaver's claim, moreover, remained unchanged.... Given the state courts' consistent refusal to grant him an evidentiary hearing, we conclude that Weaver 'fairly presented' the substance of his federal claim to the state courts, and thus properly exhausted his claim within the meaning of § 2254(b)(1).

Id. at 364-365.

Under these cases, the undersigned finds that petitioner has exhausted his legal claims by virtue of his first petition to the California Supreme Court, which challenged the Governor's reversal of the Board's 2006 grant of parole on federal due process grounds. The new factual predicate for these claims -- the 2009 decision -- does not "fundamentally alter the legal claim[s] already considered by the state courts." Weaver, supra, at 364. Critical to this finding is the fact that the 2009 decision is not based on a different, post-2006 Board determination of petitioner's suitability for parole. Rather, it stems from an appellate remand to the Governor telling him to redo the 2006 decision in light of petitioner's meritorious legal challenge to that decision. Thus, the 2009 decision not only has the same result as the 2006 decision -- reversing the Board's 2006 grant -- but is part of the same litigation that petitioner commenced upon issuance of the 2006 decision and has diligently pursued ever since. The undersigned therefore construes the 2009 decision as the latest iteration of the 2006 decision for purposes of concluding that petitioner has exhausted his legal claims.

Factually, however, the 2006 and 2009 decisions are not interchangeable. The 2009 decision to reverse the Board's 2006 grant of parole is based on substantially different facts than its predecessor -- most notably, the 2008 evidence. To satisfy the exhaustion requirement, a petitioner must "present the highest state court with the claim's factual and legal basis." Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887 (1995); see also Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715 (1992) (factual basis), superceded by statute as stated in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000). Here, the factual basis for the instant claims, namely the 2009 decision, did not issue until after petitioner had sought habeas relief in the California Supreme Court. That court therefore lacked the opportunity to rule on petitioner's constitutional claims in light of the relevant facts.

In somewhat similar circumstances, where the state court "made no factual finding with respect to" the issue on which petitioner's claim for habeas relief was based, the Ninth Circuit reversed the district court's summary denial of the claim and remanded to the district court for an evidentiary hearing on the key factual issue. Chacon v. Wood, 36 F.3d 1459, 1470 (9th Cir. 1994), overruled on other grounds by statute, 28 U.S.C. § 2253. In Chacon, petitioner alleged that his guilty plea was involuntary and that he was denied effective assistance of counsel. At a state court evidentiary hearing, petitioner testified that the translator who was the intermediary for all attorney-client communications between petitioner and his lawyer misrepresented the length of time petitioner would have to serve if he pled guilty. Id. at 1461. The state court found that petitioner's attorney properly represented him and that the translator was competent, "but it did not make any finding regarding Chacon's allegations that [the translator] failed to provide complete and accurate translations to him." Id.

The district court denied petitioner's ineffective assistance of counsel claim, relying "on the findings of fact made by the state Superior Court at the post-conviction hearing, even though that court did not decide the issue that provides the central basis for Chacon's ineffective assistance claim -- whether the interpreter accurately and fully translated [the lawyer's] advice to Chacon." Id. at 1463. "Because this issue cannot be resolved on the basis of the state court record alone, and because Chacon has alleged facts which if true would constitute a violation of the Sixth Amendment, we reverse and remand for an evidentiary hearing on the ineffective assistance claim." Id.

In the instant case, where no state court has applied petitioner's legal claims to the Governor's revised 2009 decision, an evidentiary hearing in the district court would make little sense. Here, the new "evidence" is a revised written decision by the Governor, and a state court of appeal is just as capable of -- and under principles of comity, better suited to -- applying constitutional standards to the 2009 decision as the district court. "The exhaustion requirement is based on principles of comity. In the words of the Supreme Court, '[I]t would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.'" Weaver, supra, 197 F.3d at 364 (quoting Picard, supra, 404 U.S. at 275); see also Jackson v. Caldwell, 452 F.2d 1068 (5th Cir. 1972) (first opportunity to determine facts on which federal habeas corpus petitioner bases his claim should be afforded to state courts).

C. Stay Pending Exhaustion

Given the unique posture of this case, and the requirement that petitioner exhaust both the legal and factual bases of his claim in the state Supreme Court, this court in exercise of its equitable power recommends that petitioner be given the opportunity to exhaust the factual basis of his claims in the California Supreme Court while staying the instant claims. In practice, this would mean filing a petition for writ of habeas corpus in the California Supreme Court including the same legal claims as in the instant petition, as applied to the "new facts" of the 2009 decision. See In re Martin 44 Cal.3d 1, 27 n.3 (1987) ("It is, of course, the rule that a petition for habeas corpus based on the same grounds as those of a previously denied petition will itself be denied when there has been no change in the facts or law substantially affecting the rights of the petitioner. In this case, however, new facts are alleged in the petition and supported by exhibits of recent date.") (citing In re Miller, 17 Cal. 2d 734, 735 (1941)).

In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005), the United States Supreme Court found that a stay and abeyance of a mixed federal petition should be available only in the limited circumstance that good cause is shown for a failure to have first exhausted the claims in state court, that the claim or claims at issue potentially have merit and that there has been no indication that petitioner has been intentionally dilatory in pursuing the litigation. Id. at 277-78, 125 S.Ct at 1535. The undersigned finds that petitioner meets the standards for a Rhines stay, in that the Governor's April 9, 2009 issuance of a new factual basis for petitioner's due process claims constituted good cause for petitioner's failure to address the 2009 decision in his March 20, 2009 petition to the California Supreme Court; that petitioner's claims potentially have merit; and that he has not been dilatory, intentionally or otherwise, in pursuing the litigation.

The undersigned therefore recommends that the instant petition be stayed pursuant to Rhines, giving petitioner the opportunity to exhaust the factual basis of his claims in the California Supreme Court. Petitioner will be instructed to file status reports of his progress. Once the California Supreme Court renders its opinion, provided the opinion is a denial of relief, petitioner must file an amended petition including all of his fully exhausted claims.


As has been said at several junctures herein, the procedural history of this case places it in a fairly unique position vis-a-vis exhaustion. While respondent can make the argument that punctilious observation of every exhaustion prerequisite has not been observed, overall, petitioner has attempted to give the state courts an opportunity to exhaust most of the facts underlying his claims herein -- and then some. Dismissal of the entire petition, without giving petitioner an opportunity to exhaust what little has not been exhausted in this state proceeding marathon, i.e., simply a revised wording of an already made Governor's determination, makes no sense.


1. Respondent's Motion to Dismiss (Doc. 12) be denied;

2. Petitioner be granted a stay pursuant to Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005).

3. The proceedings be stayed pending exhaustion of state remedies;

4. Petitioner be directed to file a status report of his progress in the state courts within thirty (30) days, and then every thirty (30) days thereafter until exhaustion is complete;

5. Within thirty (30) days after the final order of the California Supreme Court, petitioner must file an amended petition in this court including his fully exhausted claims; and

6. Petitioner's failure to comply with these directives will result in the district court's vacating the stay.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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