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Donald Stephen Boutte v. Martin Biter

October 4, 2012


The opinion of the court was delivered by: Kozinski, Circuit Judge:


A jury convicted Donald Stephen Boutte of assault and spousal rape in California state court. He now seeks a writ of habeas corpus under 28 U.S.C. § 2254, claiming his trial counsel was ineffective.


One evening, Boutte and his wife, J.B., went to the park with a friend. As the evening wore on, Boutte and his wife got into an argument. She tried to walk away, but Boutte ran and caught up with her. Boutte then threw her to the ground, causing her to hit her head and injure her leg. After the altercation, Boutte walked J.B. back to his car and they went to a motel.

Later that night, as they were lying in bed, Boutte began kissing and fondling J.B. She told him she didn't want to have sex. Boutte got upset, saying that he'd never met a woman as frustrating as her, and kicked the bathroom door. Once he calmed down, he came back to bed and started fondling her again, and they had sex. Rep.'s Tr. 123, 150--55, 158, 161--62, 167--68, 173.

At trial, J.B. testified that she didn't consent to sex with her husband, id. at 155, and Boutte didn't testify. The jury convicted Boutte of spousal rape; it also acquitted him of spousal abuse but convicted him of the lesser included offense of assault. Id. at 290--91.

The Court of Appeal affirmed Boutte's convictions, People v. Boutte, No. C043775, 2005 WL 737741, at *1 (Cal. Ct. App. Mar. 30, 2005), and the California Supreme Court denied review, People v. Boutte, No. S133469 (Cal. June 22, 2005). Boutte then filed a habeas petition in the Superior Court, which was denied. Boutte v. Tilton, No. HC-CR-06-0000011 (Cal. Super. Ct. Oct. 17, 2006). His subsequent petitions in the Court of Appeal and the California Supreme Court were summarily denied. In re Boutte, No. C054295 (Cal. Ct. App. Dec. 28, 2006); In re Boutte, No. S149975 (Cal. July 11, 2007). Finally, Boutte filed a federal habeas petition in this court, claiming ineffective assistance of trial counsel (IAC).


A. Procedural Hurdles

1. Because Boutte filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the court must first determine the degree to which AEDPA constrains review of Boutte's IAC claim. See 28 U.S.C. § 2254. To do that, "we begin by asking which is the last explained state-court judgment" on Boutte's claim. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991) (emphasis omitted); see Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Here, that's the Superior Court's decision.

AEDPA commands federal courts to defer to the state courts' determinations of federal issues on collateral review. See § 2254(d)(1). If the state court summarily denies the petition, a federal court must presume that it denied it on the merits and may grant the petition only if the state court's denial "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Harrington v. Richter, 131 S. Ct. 770, 783--85 (2011) (quoting § 2254(d)(1), (2)).

The Superior Court gave the following explanation in denying Boutte's IAC claim:

As to the grounds for relief, generally speaking, challenging the evidence and presentation of evidence, the evidence has already been reviewed and found sufficient in the decision [on direct appeal] of the Court of Appeal. Particulars that could have been, but were not, raised in the Court of Appeal are waived. Relief on these grounds is denied. Boutte, No. HC-CR-06-0000011, at 1.

While this explanation is far from pellucid, it's best understood as holding that Boutte waived his IAC claim by failing to raise it on direct review. This must be what the Superior Court meant when it referred to "presentation of evidence" and to "[p]articulars that could have been, but were not, raised in the Court of Appeal."

"Ordinarily, violation of firmly established and regularly followed state rules . . . will be adequate to foreclose review of a federal claim." Lee v. Kemna, 534 U.S. 362, 376 (2002) (internal quotation marks omitted). Nonetheless, there are "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question."

Id. This is one of those exceptional cases.

While the Superior Court was correct in observing that Boutte didn't raise his IAC claim on direct appeal, it clearly erred in concluding that Boutte thereby waived that claim. The California Supreme Court has repeatedly explained that a defendant need not, and generally should not, raise an IAC claim on direct appeal: "Because the appellate record ordinarily does not show the reasons for defense counsel's actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, rather than on appeal." People v. Diaz, 834 P.2d 1171, 1203 (Cal. 1992); see also People v. Seaton, 28 P.3d 175, 235 (Cal. 2001) (same); People v. Cunningham, 25 P.3d 519, 588 (Cal. 2001) (same); People v. Lucero, 3 P.3d 248, 269 (Cal. 2000) (same). It's also clear that "the rules generally prohibiting raising an issue on habeas corpus that was, or could have been, raised on appeal would not bar an ineffective assistance claim on habeas corpus." People v. Tello, 933 P.2d 1134, 1135 (Cal. 1997) (internal citation omitted).

For the Superior Court to find waiver in a situation where the California Supreme Court has repeatedly said there isn't waiver was an "exorbitant application of a generally sound rule." Lee, 534 U.S. at 376. Therefore, "this case falls within the small category of cases in which asserted state grounds are inadequate to block adjudication of a federal ...

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