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Milorad Olic v. William Knipp


March 7, 2013


The opinion of the court was delivered by: Honorable Michael W. Fitzgerald United States District Judge




Petitioner Milorad Olic filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition") on January 24, 2013. Petitioner presents five grounds for relief: (1) ineffective assistance of counsel; (2) denial of right to contact the Serbian embassy; (3) under-representation of Mexican Americans in the jury pool; (4) judicial misconduct; and (5) denial of doctor-prescribed meal and medicine, constituting systematic torture. Pet. at 5-7; Pet. P. & A. at 1-8.

After reviewing the Petition, on January 28, 2013, the Court issued an Order to Show Cause why the Petition should not be dismissed because, as indicated in the Petition, petitioner had not exhausted his state remedies with respect to any of the grounds raised in his Petition. On February 15, 2013, petitioner filed a response to the Order to Show Cause ("Response"), conceding that the claims in the Petition are unexhausted but arguing that lack of exhaustion should be excused due to external factors that prevented petitioner from exhausting the claims. After reviewing all the papers, this Court finds that the Petition must be dismissed without prejudice.


On April 7, 2011, an Orange County jury found petitioner guilty of one count of attempted murder (Cal. Penal Code §§ 664(a), 187(a)) and one count of elder and dependent adult abuse (Cal. Penal Code § 368(b)(1)). The jury found true the allegations of premeditation and deliberation on the attempted murder charge and the allegations of great bodily injury on an elder and personal use of a deadly weapon, on both charges (Cal. Penal Code §§ 1192.7, 12022(b)(1), 12022.7(c)). Pet. at 2; Pet. App. B.*fn1 On June 24, 2011, the trial court sentenced petitioner to a total term of thirteen years to life with the possibility of parole for attempted murder and the enhancements, and stayed execution of the three-year sentence for elder and dependent adult abuse and the enhancements. Pet. at 2; Pet. App. B.

Petitioner filed a petition for direct review in the California Court of Appeal. Petitioner contended the trial court erred by granting his request for self-representation pursuant to Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). Pet. App. B. Petitioner also contended that the trial court erred in its jury instructions by giving CALCRIM No. 372 because that particular instruction permitted the jury to infer guilt from petitioner's conduct of fleeing or attempting to flee. Id.

On August 14, 2012, the California Court of Appeal rejected both of petitioner's arguments and affirmed his conviction. Id.

Petitioner's petition for review in the California Supreme Court was denied without comment on October 17, 2012. Pet. App. A.


It is well established that, before a state prisoner may challenge his state conviction in federal court via a federal habeas petition, he must first exhaust his federal grounds for relief in state court. 28 U.S.C. § 2254(b); see also Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (per curiam). To satisfy the exhaustion requirement, a petitioner must "fairly present" his federal claims to the state courts, "to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan, 513 U.S. at 365(internal quotation marks and citation omitted). "To provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 158 L. Ed. 2d 64 (2004) (citations omitted).

To "fairly present" a federal claim to the state's highest court, the petitioner must alert that court to the claim in the brief or petition presented to that court. Baldwin, 541 U.S. at 31-32. A state prisoner does not "fairly present" a claim to a state court if that court must read beyond the petition or a brief to find material, such as a lower court opinion in the case, that does so. Id. Further, the petitioner must describe boththe federal legal theory andthe operative facts to the state court so that court has a "'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Anderson v. Harless, 459 U.S. 4, 6, 103 S. Ct. 276, 74 L. Ed. 2d 3 (1982) (per curiam) (citation omitted). In describing the federal legal theory to the state court, a petitioner must identify the specific federal claim; general appeals to a constitutional guarantee as broad as due process are insufficient to fairly present the "substance" of a federal claim to a state court. See Gray v. Netherland, 518 U.S. 152, 163, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996).

Here, it is apparent petitioner failed to raise any of his five asserted grounds for federal habeas relief in the California courts. The Petition states that none of the grounds it raises have been ruled on by either the California Court of Appeal or the California Supreme Court. Pet. at 5-6. In his Response to the Court's Order to Show Cause, petitioner concedes also that the claims in the Petition are unexhausted. Resp. 1-3.

In one portion of the Petition, petitioner identifies one of the grounds he raised before the California Court of Appeal and the California Supreme Court as "ineffective assistance of counsel," which is one of the five claims petitioner makes in the instant Petition. Pet. at 2. The Court of Appeal's decision reveals, however, that petitioner did not make such an ineffective assistance claim there, but asserted only that the trial court should not have granted his Faretta request to self-represent. Pet. App. B. Challenge to a Faretta request determination is not an ineffective assistance of counsel claim, and in particular it is not the claim petitioner makes in the instant Petition, which claims ineffective assistance by his private investigator. See Pet. at 5. Petitioner's indication in the instant Petition that he has not exhausted the ineffective assistance of counsel ground in the state courts, petitioner's incorrect characterization of the Faretta claim to the Court of Appeal as an ineffective assistance claim, and petitioner's concession of non-exhaustion in the Response to the Order to Show Cause lead this Court to conclude that petitioner also did not raise an ineffective assistance of counsel claim before the California Supreme Court. And there can be no question from the Petition that petitioner failed to raise any of his four other claims before the California Supreme Court.

While conceding non-exhaustion of the five grounds in the Petition, petitioner argues in his Response to the Order to Show Cause that his failure to exhaust should be excused since external factors beyond his control prevented petitioner from exhausting state court remedies for the grounds in the Petition. Resp. at 1-3. Petitioner identifies two external factors in the Response: (1) petitioner's appellate counsel's refusal to include, in the briefing to the California Court of Appeal, the issues petitioner now raises in the Petition; and (2) petitioner's investigator's failure to give him trial motions, which prevented petitioner from raising certain issues in the state courts. Id. Moreover, petitioner cites a number of cases in purported support of his argument and includes a letter from his appellate counsel. Id.; see also Resp. Ex. A.

After reviewing petitioner's Response, this Court finds petitioner's argument to be unpersuasive. The cases cited by petitioner involved instances in which habeas petitioners challenged findings of procedural default by identifying excuses for default. See Resp. 1-3. But failure to exhaust is different than procedural default. Cassett v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir. 2005).

"The exhaustion doctrine applies when the state court has never been presented with an opportunity to consider a petitioner's claims and that opportunity may still be available to the petitioner under state law. In contrast, the procedural default rule barring consideration of a federal claim applies only when a state court has been presented with the federal claim, but declined to reach the issue for procedural reasons, or if it is clear that the state court would hold the claim procedurally barred."

Id. (quoting Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002)). Objective factors such as those identified by petitioner cannot excuse petitioner's failure to exhaust because this Court finds the Petition only to be unexhausted, not procedurally defaulted; opportunity for exhaustion of state remedies apparently remains fully open to petitioner at this time. Accordingly, petitioner's wholly unexhausted Petition should be dismissed without prejudice.


IT IS THEREFORE ORDERED that Judgment shall be entered denying the Petition and dismissing this action without prejudice.


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