The opinion of the court was delivered by: Honorable Barry Ted MoskowitzUnited States District Judge
(1) DECLINING TO ADOPT THE FINDINGS AND CONCLUSIONS OF UNITED STATES MAGISTRATE JUDGE;
(2) DENYING RESPONDENT'S MOTION TO DISMISS;
(3) DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS; AND
(4) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner is a California prisoner proceeding pro se and in forma pauperis with a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) A San Diego County Superior Court jury convicted him of driving under the influence of alcohol and driving with a blood alcohol level of over 0.08 percent. (Pet. at 1.) He admitted two prior felony convictions for driving under the influence within the previous ten years, admitted he had served two prior prison terms, and was sentenced to five years in state prison. (Id.) Petitioner claims that his federal constitutional rights were violated because the trial court failed to instruct the jury on the lesser included offense of attempted driving under the influence (claim one); and because his trial attorney was ineffective in failing to raise an insanity defense (claim two). (Id. at 6-7.)
Although claim one was adjudicated on the merits in the state appellate and supreme courts, Petitioner admits that claim two has never been presented to any state court. (Id.) He contends, however, that because the failure to raise claim two in the state court was a result of ineffective assistance of appellate counsel, he has satisfied the "cause and prejudice" standard necessary to have a procedurally defaulted claim addressed on its merits in this proceeding. (Id. at 5, 7.)
Respondent has filed a Motion to Dismiss the Petition on the basis that it is a "mixed petition," that is, one containing both exhausted and unexhausted claims. (Doc. No. 13.) Petitioner has not filed an Opposition to Respondent's Motion.
Presently before the Court is a Report and Recommendation ("R&R") submitted by United States Magistrate Judge Peter C. Lewis. (Doc. No. 13.) The Magistrate Judge found that claim one is exhausted, but that claim two consists of two unexhausted claims, one alleging ineffective assistance of trial counsel for failing to raise an insanity defense and the other alleging ineffective assistance of appellate counsel in failing to raise the ineffective assistance of trial counsel claim. (R&R at 4-5.) The Magistrate Judge found that Petitioner has not established cause to excuse a procedural default because a claim of ineffective assistance of counsel cannot be used as cause unless it too has been exhausted. (Id. at 5-6.) The Magistrate Judge therefore concluded that the Petition is "mixed," and recommended granting Respondent's Motion to Dismiss, with the provision that Petitioner be given the option of abandoning his unexhausted claims in order to avoid dismissal of the Petition. (Id. at 6.) Petitioner has not filed objections to the R&R.
The Court has reviewed the R&R pursuant to 28 U.S.C. § 636(b)(1), which provides that: " 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).
1. Petitioner has Satisfied the Exhaustion Requirement
Although Petitioner has not presented his ineffective assistance of counsel claims to the state courts, he has satisfied the technical requirements for exhaustion because he no longer has state court remedies available to him with respect to those claims. Cassett v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir. 2005) ("A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer 'available' to him."), quoting Coleman v. Thompson, 501 U.S. 722, 732 (1991); see also 28 U.S.C.A. § 2254(c) (West 2006) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.") In such a situation the claim is procedurally defaulted in this Court. Coleman, 501 U.S. at 735 n.1 (holding that a procedural default arises when a petitioner has "failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.")
Based on California's rule barring untimely petitions for post-conviction relief, which the United States Supreme Court has found to be clearly established and consistently applied, Petitioner no longer has state court remedies available with respect to his ineffective assistance of counsel claims. See Walker v. Martin, 562 U.S. ___, 131 S.Ct. 1120, 1125-31 (2011) (holding that California's timeliness requirement providing that a prisoner must seek habeas relief without "substantial delay" as "measured from the time the petitioner or counsel knew, or should reasonably have known, of the information offered in support of the claim and the legal basis for the claim," is clearly established and consistently applied), citing In re Robbins, 18 Cal.4th 770, 805 (1998) (holding that a habeas claim "that is substantially delayed" will not be considered unless "the petitioner can demonstrate 'good cause' for the delay.") The United States Supreme Court has stated that federal habeas courts should not treat California's timeliness rules as differing significantly from other states which consider petitions untimely after unexplained delays of thirty or sixty days. Evans v. Chavis, 546 U.S 189, 199-201 (2006), citing Carey v. Saffold, 536 U.S. 214, 219 (2002).
Petitioner states that he asked his trial counsel to present an insanity defense but counsel ignored the request. (Pet. at 7.) Thus, Petitioner could have presented his ineffective assistance of trial and appellate counsel claims to the state appellate court in a habeas petition before or immediately after his conviction was affirmed by the appellate court on August 24, 2009. Based on Petitioner's unexplained delay of two years and counting in presenting these claims, it appears that he has no available state court remedies remaining for the claims, which arose during his trial and appellate proceedings, and he has therefore met the technical requirements of exhaustion as to these claims and has procedurally defaulted the claims. Cassett, 406 F.3d at 621 n.5; Coleman, 501 U.S. at 735 n.1. Nevertheless, as discussed below, Petitioner's ineffective assistance of counsel claims are without merit, and they may be denied on the merits notwithstanding Petitioner's failure to present them to the state court and notwithstanding any procedural default. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); Acosta-Huerta v. Estelle, 7 F.3d 139, 142 (9th Cir. 1992) (holding that the exhaustion requirement is generally ...