IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 28, 2012
JOSEPH P. MORVAN, PETITIONER,
FINDINGS AND RECOMMENDATIONS
Petitioner, a prisoner incarcerated at the Tallahatchie County Correctional Facility in Tutwiler, Mississippi, is proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Therein, petitioner challenges the thirteen year state prison sentence imposed on May 10, 2010, following his entry of plea pursuant to plea agreement in the Tehama County Superior Court on drug trafficking charges. (Doc. No. 1 at 1-2.) Specifically, petitioner claims that a three year sentencing enhancement for a prior term of probation was unlawfully imposed as part of his sentence even though he had successfully completed the term of that probation. (Id. at 4.)*fn1
Before the court is respondent's motion to dismiss this action due to petitioner's alleged failure to first exhaust his claims for habeas relief in state court as required by 28 U.S.C. § 2254(b). Petitioner has failed to file an opposition to the motion despite the court's July 19, 2012 order granting him additional time to file and serve that opposition. (Doc. No. 15.)*fn2
I. Respondent's Argument (Doc. No. 13)
Respondent argues that petitioner's sole claim for federal habeas relief was presented in a habeas petition filed with the California Supreme Court but that state petition was denied with citations to People v. Duvall, 9 Cal. 4th 464, 474 (1995) and In re Swain, 34 Cal. 2d 300, 304 (1949). Respondent contends that the cases cited by the California Supreme Court in denying relief stand indicate that petitioner failed to present the claim with sufficient particularity and supporting evidence. Respondent argues that because petitioner had the opportunity to cure those deficiencies and refile his petition, his habeas petition filed with the California Supreme Court did not satisfy the exhaustion requirement.
II. Petitioner's State and Federal Habeas Petitions
In his pending federal habeas petition, petitioner presents one claim: Ground one: The State imposed an enhancement on a prior probation term which violated petitioners [sic] 5th and 14th Amendments.
Supporting FACTS: The court imposed a 3 yr enhancement for a prior probation term. Petitioner had already completed the probation successfully before the instant case arose. The enhancement is illegal and violates the due process clause under the United States Constitution 14 [sic] Amendment. (Doc. No. 1 at 4.)
In his habeas petition filed with the California Supreme Court, petitioner presented essentially this same claim, stated there as follows:
Ground 1: Petitioners [sic] 5th and 14th Amendment rights under due process were violated because his sentence was enhanced for a prior probation term, this probation term was completed successfully making the enhancement illegal.
Supporting facts: Petitioners [sic] sentence was illegally enhanced based on prior convictions which were unconstitutional. The sentence is excessive - based on greater punishment than the legislature intended, this violated petitioners [sic] due process at sentencing. Petitioner is contending that his guilty plea and its consequences which was also a violation of his due process rights. The prior conviction was determined by state procedure that violates due process. Petitioner is requesting the court to re-examine his sentence to be sure its [sic] legal and conforms with the due process clause under the United States Constitution of the United States of America. U.S.C.A. 5, 14.
(Lod. Doc. 2 at 3.)
A. The Exhaustion Requirement
State courts must be given the first opportunity to consider and address a state
prisoner's habeas corpus claims. See Rhines v. Weber, 544 U.S. 269, 273-74 (2005) (citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)); Scott v. Schriro, 567 F.3d 573, 583 (9th Cir. 2009) ; King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) ("Habeas petitioners have long been required to adjudicate their claims in state court - that is, 'exhaust' them - before seeking relief in federal court."); Farmer v. Baldwin, 497 F.3d 1050, 1053 (9th Cir. 2007) ("This so-called 'exhaustion requirement' is intended to afford 'the state courts a meaningful opportunity to consider allegations of legal error' before a federal habeas court may review a prisoner's claims.") (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). In general, a federal court will not grant a state prisoner's application for a writ of habeas corpus unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1). A state will not be deemed to have waived exhaustion unless the state, through counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(3).
A petitioner satisfies the exhaustion requirement by fairly presenting to the highest state court all federal claims before presenting the claims to the federal court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008). A federal claim is fairly presented if the petitioner has described the operative facts and the federal legal theory upon which his claim is based. See Wooten, 540 F.3d at 1025 ("Fair presentation requires that a state's highest court has 'a fair opportunity to consider . . . and to correct [the] asserted constitutional defect.'"); Lounsbury v. Thompson, 374 F.3d 785, 787 (9th Cir. 2004) (same) (quoting Picard, 404 U.S. at 276)); Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999). This requires petitioner to have "characterized the claims he raised in state proceedings specificallyas federal claims." Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (emphasis in original) (internal citation omitted). "In short, the petitioner must have either referenced specific provisions of the federal constitution or cited to federal or state cases involving the legal standard for a federal constitutional violation. Mere 'general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial,' do not establish exhaustion." Id. (quoting Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999)). Thus, a claim is unexhausted where the petitioner did not fairly present the factual or legal basis for the claim to the state court. See Picard v. Connor, 404 U.S. at 275. "[I]t is not enough . . . that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982). As a rule, the "mere similarity of claims is insufficient to exhaust." Duncan, 513 U.S. at 365-66.
B. The Claim Was Not Fairly Presented
As noted above, the California Supreme Court denied petitioner's state habeas petition in which he presented his sole claim for relief citing only the decisions in Duvall and Swain. (Lod. Doc. 3.) Relying on the citation to those decisions by the state high court, respondent argues that petitioner has failed to exhaust his claim by fairly presenting it for state court review.
Federal courts, however, must independently examine a state habeas petition to determine whether the claim was fairly presented so as to satisfy the federal exhaustion requirement. Kim v. Villalobos, 799 F.2d 1317, 1320 (9th Cir. 1986) ("It is therefore incumbent upon us, in determining whether the federal standard of 'fair presentation' of a claim to the state courts has been met, independently to examine . . . [petitioner's] petition to the California Supreme Court."). Therefore, the California Supreme Court's citation to Duvall and Swain does not necessarily mean that petitioner has failed to satisfy the exhaustion requirement. See Kim, 799 F.2d at 1320 ("The mere citation of In re Swain does not preclude [federal habeas] review."); see also Newels v. Busby, No. CV 10-9696-JHN (JPR), 2012 WL 1958895, *8 (C.D. Cal. Apr. 13, 2012) ("Ground Eight is not per se unexhausted based on the state supreme court's citations to Duvall and Swain[.]"); Campos v. Adams, No. 2:05-cv-00108-AK, 2012 WL 3881200, *4 (E.D. Cal. Sept. 6, 2012) (concluding that a citation to Duvall and Swain do not establish per se that petitioner failed to exhaust) (Kozinski, C.J. sitting by designation); Sullivan v. Evans, No. CIV S-09-1326 DAD P, 2010 WL 596349, *3 (E.D. Cal. Feb. 9, 2010) (same).
Nonetheless, a review of the habeas petition filed with the California Supreme Court in this case leads to the conclusion that petitioner's unlawful sentence enhancement claim was not fairly presented to that court. In that state habeas petition, petitioner failed to specify the nature and substance of his claim for relief but instead merely alleged in conclusory fashion that his prison term had been unlawfully enhanced based on a "prior probation term." (Lod. Doc. No. 2 at 3.) Petitioner did not provide the California Supreme Court with a transcript of his sentencing hearing to clarify the nature of his claim and his attachments to the petition focused on the apparently irrelevant probation revocation proceedings with respect to his prior conviction. See fn. 1, supra. Based upon the vague, confusing and conclusory nature of the allegations presented in his state habeas petition, the undersigned concludes that petitioner in this case failed to fairly present a federal constitutional claim challenging the sentence enhancement imposed in 2010 to the California Supreme Court as required to exhaust such a claim.
The court also finds that petitioner failed to fairly present the state high court with any legal basis with respect to his due process claim. Petitioner's mere assertion that the sentence enhancement violated due process is insufficient. See Rose v. Palmateer, 395 F.3d 1108, 1111 (9th Cir. 2005) (holding that it is not enough to plead with specificity the federal nature of a claim, a petitioner is also required "to articulate the substance of an alleged violation with some particularity."); Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003) ("The state prisoner must describe in the state proceedings both the operative facts and the federal legal theory on which his claim is based so that the state courts have a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim.") (internal quotation marks omitted); Morgande v. Tilton, No. 2:07-cv-1824-MMS, 2009 WL 2515791, *7 (E.D. Cal. Aug. 13, 2009) ("fleeting reference" in a California Supreme Court petition to a "generic and buried assertion of a due process violation does not constitute fair presentation of the substance of the claim to the state court for purposes of exhaustion").
For all of these reasons, the undersigned concludes that any challenge by petitioner to the enhancement imposed as part of his 2010 sentence on federal due process grounds is unexhausted and respondent's motion to dismiss should be granted.*fn3
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Respondent's May 17, 2012 motion to dismiss the pending habeas petition as unexhausted (Doc. No. 13) be granted; and
2. This action be dismissed without prejudice.
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 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 seven 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).
In any objections he elects to file, petitioner shall address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).