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David Hunter v. San Luis Obispo


September 11, 2012


The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge


This Report and Recommendation is submitted to the Honorable Manuel L. Real, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.


Petitioner, a state prisoner recommitted for treatment as a mentally disordered offender, filed a "Petition for Writ of Habeas Corpus" on August 1, 2012. Respondent filed an Answer and lodged documents on August 24, 2012. Petitioner filed a Reply on September 6, 2012.


On July 29, 2011, the Superior Court ordered Petitioner recommitted for mental health treatment under California Penal Code section 2962 et seq. (Lodged Document 2). Before filing a direct appeal from this order, Petitioner filed a habeas corpus petition with the California Supreme Court in action S195333 (Lodged Document 11). On August 17, 2011, the California Supreme Court summarily denied this petition, citing "In re Dixon (1953) 41 Cal. 2d 756, 759; In re Swain, (1949) 34 Cal. 2d 300, 304; In re Lindley, (1947) 29 Cal. 2d 709, 723" (Lodged Document 12).

On direct appeal, Petitioner challenged the sufficiency of the evidence to support the recommitment order (Lodged Document 3). The California Court of Appeal rejected this challenge in a reasoned decision filed on June 22, 2012 (Lodged Document 6).

Read liberally, the present Petition appears to challenge the sufficiency of the evidence and the failure of an assertedly subpoenaed witness to appear to testify in court, which allegedly deprived Petitioner of his right to cross-examine the witness. The present Petition names "Superior Court San Luis Obispo" as the sole "Respondent."


For the reasons discussed herein, the Petition should be denied and dismissed without prejudice.

I. The Court Lacks Personal Jurisdiction Over Respondent.

"A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition." Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994); see 28 U.S.C. foll. § 2254 Rule 2(a). Where, as here, the petitioner is confined in an institutional facility, the warden or supervisor of the institutional facility is the state officer having custody of the petitioner. See Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); accord Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004); Stanley v. California Supreme Court, 21 F.3d at 360. "Failure to name the petitioner's custodian as a respondent deprives federal courts of personal jurisdiction." Stanley v. California Supreme Court, 21 F.3d at 360; accord Smith v. Idaho, 392 F.3d 350, 352-55 (9th Cir. 2004). Thus, the Petition's naming of "Superior Court San Luis Obispo" as the sole Respondent deprives this Court of personal jurisdiction.*fn1

II. Petitioner has Failed to Exhaust State Remedies.

A federal court will not grant a state prisoner's petition for writ of habeas corpus unless it appears that the prisoner has exhausted available state remedies. 28 U.S.C. § 2254(b) - (c); Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). "Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." O'Sullivan v. Boerckel, 526 U.S. at 844. A federal court may raise exhaustion problems sua sponte. See Stone v. San Francisco, 968 F.2d 850, 856 (9th Cir. 1992), cert. denied, 506 U.S. 1081 (1993); see also Granberry v. Greer, 481 U.S. 129, 134-35 (1987); cf. 28 U.S.C. § 2254(b)(1) (court generally cannot grant habeas relief on an unexhausted claim).

State remedies have not been exhausted unless and until the petitioner's federal claims have been fairly presented to the state's highest court. See Castille v. Peoples, 489 U.S. 346, 350-51 (1989); James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied, 513 U.S. 935 (1994). A claim has not been fairly presented unless the petitioner has described in the state court proceedings both the operative facts and the federal legal theory on which the claim is based. Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Anderson v. Harless, 459 U.S. 4, 6 (1982); Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999).

In denying the state habeas petition in action S195333, the California Supreme Court cited, inter alia, In re Swain, 34 Cal. 2d 300, 304, 209 P.2d 793 (1949), cert. denied, 338 U.S. 944 (1950) ("Swain"). The Swain decision generally requires denial of a state habeas petition that fails to disclose fully those facts upon which the petitioner bases his or her contentions. Id. Thus, the California Supreme Court appears to have denied the petition in action S195333 (at least in part) for violation of this "procedural requirement." Id. "If a state court denies a petition for post conviction relief on procedural grounds, the petitioner has not exhausted his state remedies." Harris v. Superior Ct., 500 F.2d 1124, 1126 (9th Cir. 1974) (en banc), cert. denied, 420 U.S. 973 (1975).

When the California Supreme Court denies a state habeas petition and cites Swain, the federal court will not reach the merits of the claims contained in the state petition unless the state petition presented the claims "with as much particularity as is practicable." Kim v. Villalobos, 799 F.2d 1317, 1320 (9th Cir. 1986). The Court's review of the petition in action S195333 reveals that Petitioner did not present his claims "with as much particularity as is practicable." See Kim v. Villalobos, 799 F.2d at 1320 (Compare Lodged Document 11 with present Petition and Petitioner's Reply). Petitioner could have alleged the claims in his state petition with greater particularity, especially Petitioner's claims concerning the alleged deprivation of his right to cross-examine the assertedly subpoenaed witness. Therefore, the California Supreme Court properly invoked Swain and Petitioner has not exhausted his state remedies.

Petitioner still may be able to present his unexhausted claims to the California Supreme Court. See, e.g., In re Harris, 5 Cal. 4th 813, 825, 21 Cal. Rptr. 2d 373, 378 (1993) (claims that fundamental constitutional rights have been violated generally may be raised by state habeas petition); People v. Sorensen, 111 Cal. App. 2d 404, 405, 244 P.2d 734 (1952) (same).*fn2

Respondent's assertion of a procedural default based on the California Supreme Court's citation of In re Dixon*fn3 should not change the result herein. In denying the state petition, the California Supreme Court cited more than one precedent without specifying which precedent applied to which claim. Arguably, therefore, the Supreme Court's summary denial is too ambiguous to support a procedural default. See Valerio v. Crawford, 306 F.3d 742, 774-75 (9th Cir. 2002) (en banc), cert. denied, 538 U.S. 994 (2003) ("By failing to specify which claims were barred for which reasons, the Nevada Supreme Court did not clearly and expressly rely on an independent and adequate state ground.") (citation and internal quotations omitted); Calderon v. United States District Court for the Eastern District of California (Bean), 96 F.3d 1126, 1131 (9th Cir. 1996), cert. denied, 520 U.S. 1204 (1997) (citation and internal quotations omitted) ("[A] procedural default based on an ambiguous order that does not clearly rest on independent and adequate state grounds is not sufficient to preclude federal collateral review.").

Moreover, circumstances have changed since the California Supreme Court denied Petitioner's state habeas petition. The California Court of Appeal subsequently issued a reasoned decision concerning Petitioner's claim of insufficiency of the evidence. Part of the rationale for the California Supreme Court's denial of Petitioner's habeas petition may have been the patent prematurity of that petition, given the fact that Petitioner had sought habeas relief before having sought appellate relief. The subsequent change in circumstances may affect the Supreme Court's willingness to invoke a procedural bar. See footnote 3, supra; cf. Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) ("State procedural bars are not immortal, however; they may expire because of later actions by state courts").

In any event, the California Supreme Court's invocation of In re Doyle may have been inappropriate at least as to portions of Petitioner's claims.*fn4 If, for example, Petitioner must rely on evidence outside the record in an attempt to establish the subpoenaing of a witness, potential relief in state court might be unavailable by direct appeal, but might be available by habeas corpus. See In re Sakarias, 35 Cal. 4th 140, 169, 106 P.3d 931, cert. denied, 546 U.S. 939 (2005) (claim based substantially on facts outside the appellate record may be brought by habeas corpus); see also People v. Doolin, 45 Cal. 4th 390, 461 n.2, 198 P.3d 11, cert. denied, 130 S. Ct. 168 (2009) ("Rejection of such a claim on direct appeal does not foreclose defendant from making a more persuasive showing on habeas corpus, based on matters outside the appellate record").


For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition without prejudice.


Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.

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