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Michael Courts Hester v. Dept. of Corrections


December 19, 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 James V. Selna, 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 filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on July 6, 2012. Respondent filed an Answer on October 17, 2012, asserting that the Petition is unexhausted. Petitioner filed a Traverse on December 14, 2012.


An Information charged Petitioner with unlawful driving or taking of a vehicle, a felony, in violation of California Penal Code section 10851(a) (Respondent's Lodgment I, Clerk's Transcript ["C.T."] 40-42). The Information further alleged that Petitioner had suffered:

(1) eight prior felony convictions within the meaning of California Penal Code section 1203(e)(4); (2) four prior convictions for violation of California Penal Code section 10851 within the meaning of California Penal Code section 666.5; and (3) a prior 1987 robbery conviction qualifying as a "strike" under California's Three Strikes Law, California Penal Code sections 667(b) - (i) and 1170.12(a) - (d) (C.T. 40-42).*fn1

On September 25, 2009, a Los Angeles Superior Court jury found Petitioner guilty of the charged felony (Respondent's Lodgment K, Reporter's Transcript ["R.T."] 357; C.T. 69, 71). The court found true the prior conviction allegations, including the 1987 robbery conviction (R.T. 365; C.T. 71).

Prior to sentencing, on October 22, 2009, Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied on November 10, 2009 with citations to People v. Duvall, 9 Cal. 4th 464, 37 Cal. Rptr. 2d 259, 265, 886 P.2d 1252 (1995) ("Duvall"), and In re Swain 34 Cal. 2d 300, 304, 209 P.2d 793 (1979), cert. denied, 338 U.S. 944 (1950), 340 U.S. 938 (1951), and 342 U.S. 914 (1952) ("Swain") (Respondent's Lodgment G, H).

On November 23, 2009, the court imposed a mid-term sentence of three years, doubled to six years pursuant to the "one strike" provisions of the Three Strikes Law, California Penal Code sections 667(e)(1), 1170.12(c)(1) (R.T. 1204; C.T. 75-76).

In or about March, 2011, Petitioner filed a habeas corpus petition in the Superior Court, which that court denied on March 17, 2011 (see Traverse, Exhibits, pp. 22-23).*fn2

The Court of Appeal affirmed the judgment on June 29, 2011 (Respondent's Lodgment D). On September 14, 2011, the California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment F).


The Petition contends that the doubling of Petitioner's sentence pursuant to California's Three Strikes Law was improper because Petitioner's 1987 prior conviction allegedly did not constitute a "strike." Petitioner contends that the sentencing judge imposed sentence without an adequate "969b" priors packet, which Petitioner contends would have shown that the 1987 conviction, assertedly the result of a plea bargain, was not a conviction for robbery, but allegedly was a conviction for grand theft (Petition, p. 6). Petitioner contends that the judge in the 1987 case agreed with Petitioner's counsel in that case, that the offense was "closer to grand theft," because there purportedly was "no force, fear, duress or contact" between Petitioner and the victim, Petitioner possessed no weapons, had not made any threats, and was mauled by police dogs after the event (id.). Petitioner contends he was placed twice in jeopardy for a "non-violent, non-serious 25 yr. old case" (Petition, p. 7).

The Traverse appears to contain additional claims not raised in the Petition, including alleged ineffective assistance of appellate counsel, a purported Brady violation,*fn3 and an alleged breach of Petitioner's 1987 plea agreement (Traverse, pp. 3-4, 7-9).


A federal court will not grant a state petitioner's petition for writ of habeas corpus unless it appears that the petitioner 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. The exhaustion requirement seeks to avoid "the unseemliness of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." Id. at 844-45 (citations, internal brackets and quotations omitted). Exhaustion is considered on a "claim-by-claim" basis. Insyxiengmay v. Morgan, 403 F.3d 657, 667 (9th Cir. 2005). Petitioner bears the burden to show compliance with the exhaustion requirement. See, e.g., Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981), cert. denied, 455 U.S. 1023 (1982); see also Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011), cert. denied, 132 S. Ct. 426 (2011); Boyd v. Waymart, 579 F.3d 330, 367 (3d Cir. 2009) (en banc); McCormick v. Kline, 572 F.3d 841, 851 (10th Cir. 2009); Morgan v. Superior Court of Los Angeles, 2012 WL 6140213, at *2 (C.D. Cal. Oct. 31, 2012), adopted, 2012 WL 6178430 (C.D. Cal. Dec. 11, 2012); Porter v. McEwen, 2011 WL 4433648, at *1 (S.D. Cal. Sept. 22, 2011).

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).*fn4 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 his or her 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 Petitioner's petition for review to the California Supreme Court, Petitioner challenged the sufficiency of the evidence to support his conviction, but did not challenge his sentence (see Respondent's Lodgment E). The petition for review did not exhaust any claim raised in the present federal Petition or any of the new claims mentioned in the Traverse.

The California Supreme Court denied Petitioner's 2009 habeas corpus petition with citations to Duvall and Swain, signifying that Petitioner failed to state fully and with particularity the facts upon which relief was sought. See Gaston v. Palmer, 417 F.3d 1030, 1036-37 (9th Cir. 2005), modified, 447 F.3d 1165 (9th Cir. 2006), cert. denied, 549 U.S. 1134 (2007). Where the California Supreme Court denies a habeas petition with citations to Duvall or Swain, the denial can signify a failure to exhaust available state remedies. See Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). However, a federal habeas court must examine independently the sufficiency of the petitioner's California Supreme Court petition, and will reach the merits of the claims where the state petition presented the claims "with as much particularity as is practicable." Id. at 1320. The Court has examined Petitioner's 2009 California Supreme Court habeas corpus petition, which consists of a form petition and three attached pages. The attached pages of this petition in the copy lodged by Respondent are of poor quality, and some portions of the document are illegible.*fn5 The petition appears to challenge Petitioner's 2009 conviction, and contains conclusory, rambling and confused allegations concerning alleged: (1) witness tampering; (2) prosecutorial misconduct at the preliminary hearing; (3) judicial error in allowing the prosecutor to charge Petitioner with a felony; (4) ineffective assistance of trial counsel, who allegedly yelled at Petitioner, said Petitioner was guilty, refused to investigate or question witnesses, refused to seek to disqualify the judge, refused to move for reduction of the charge, and was "operating on orders to throw the case"; (5) the prosecution's alleged use of a purportedly false police report and false testimony; (6) improper denial of Marsden motions;*fn6 (7) trial court error in response to a jury question; and (8) Petitioner's alleged inability to understand the proceedings (see Respondent's Lodgment G, pp. 2-4, attachment, pp. 1-2). With respect to the trial of the prior conviction allegations, Petitioner appeared to allege that his attorney knew that the priors packet purportedly was incomplete and that the prosecution's documentation supposedly concerned a 1993 case (id., p. 4; attachment, pp. 2-3). Petitioner appeared to allege that the judge abused his authority when the judge allegedly stated on the record "we[']ll just proceed with what we have" (id.). Petitioner alleged that his attorney assertedly did not object to the use of the purportedly incomplete priors packet, make any argument, cite any cases, or argue that the charge should be reduced to a misdemeanor (id., p. 4; attachment, p. 2).

It is quite evident that portions of Petitioner's 2009 California Supreme Court habeas petition were not pled "with as much particularity as is practicable." It is also evident that Petitioner's 2009 California Supreme Court petition did not contain any contention that allegedly missing documentation would have shown that Petitioner's 1987 conviction was not a conviction for robbery, but allegedly a conviction for grand theft. The California Supreme Court petition did not allege that there assertedly was no proof of force or fear in the 1987 case, that Petitioner purportedly had no weapon, or that Petitioner allegedly was mauled by police dogs after the event. The California Supreme Court petition also did not allege that Petitioner purportedly was place twice in jeopardy.

Nor did Petitioner's California Supreme Court habeas petition contain a Brady claim, a claim of ineffective assistance of appellate counsel, or any allegation that the prosecution purportedly breached the 1987 plea agreement, as alleged in Petitioner's Traverse.

Therefore, Petitioner did not fairly present to the California Supreme Court the operative facts or legal theories supporting the sentencing claims contained in the present federal Petition or the Traverse. The Petition is wholly unexhausted.

In certain circumstances, the Court has authority to stay a "mixed" petition containing both exhausted and unexhausted claims.

See Rhines v. Weber, 544 U.S. 269 (2005); King v. Ryan, 564 F.3d 1133, 1143 (9th Cir.), cert. denied, 130 S. Ct. 214 (2009) (stay procedure authorized by Kelly v. Small, 315 F.3d 1063 (9th Cir.), cert. denied, 548 U.S. 1042 (2003), overruled on other grounds, Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), remains available after Rhines v. Weber). However, the present Petition is not mixed; it is completely unexhausted. The Court cannot stay a completely unexhausted petition. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (Rhines stay inappropriate); Dimitris v. Virga, 2012 WL 5289484, at *4 & n.3 (C.D. Cal. Feb. 16, 2012), adopted, 2012 WL 5267741 (C.D. Cal. Oct. 22, 2012); (Rhines and Kelly stays inappropriate); Jarrar v. Barnes, 2009 WL 2394361, at *1 n.1 (E.D. Cal. Aug. 4, 2009) (Kelly stay inappropriate); Tappin v. United States District Court, 2008 WL 686555, at *8 (E.D. Cal. Mar. 11, 2008) (same). Therefore, the Petition must be dismissed without prejudice. See Guillory v. Roe, 329 F.3d 1015, 1017 (9th Cir.), cert. denied, 540 U.S. 974 (2003).


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

Case 2:12-cv-05826-JVS-E Document 23-1 Filed 01/28/13 Page 10 of 10 Page ID #:223


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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