United States District Court, C.D. California
OPINION and ORDER
VALERIE BAKER FAIRBANK, Senior District Judge.
Adopting the 2d R&R as Supplemented; Declining to Exercise Statutory Discretion to Deny Unexhausted Claims for Lack of Merit; Directing Petitioner to Choose One of Four Options by a Date Certain on Penalty of Dismissal with Prejudice; Requiring Respondent to Respond and Permitting Petitioner to Reply
In July 2010, an L.A. County Superior Court jury convicted Tyler Jenkins ("petitioner") of voluntary manslaughter with the use of a firearm and negligently shooting at a motor vehicle. In August 2010 petitioner was sentenced to 21 years in state prison. See Petition ("Pet") (Document ("Doc") 1) at 2. Proceeding pro se, petitioner filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in April 2013. There is no suggestion that any of the claims is untimely. Petitioner contends that the state appellate courts committed AEDPA error in rejecting the following five claims: (1) the evidence presented at trial was insufficient to support the convictions beyond a reasonable doubt, see Pet. at 5 ¶ 7(a); (2) the trial court violated his Fifth, Sixth, and Fourteenth Amendment right to a fair trial by excluding evidence that the victim had previously possessed firearms, id. at 5 ¶ 7(b); (3) the trial court violated his Fifth, Sixth, and Fourteenth Amendment rights to due process by imposing an upper-term sentence when the evidence failed to support its finding of aggravating circumstances, id. at 6 ¶ 7©; (4A) his trial attorney rendered ineffective assistance of counsel in violation of the Sixth Amendment ("IAC") by failing to conduct an adequate pretrial investigation and put on an adequate defense, id. at 6 ¶ 7(d); (4B) his appellate attorney rendered IAC by failing to "properly federalize all claims" and failing to raise the issue of imperfect self-defense, id.; and (5) his convictions violated his Fifth, Sixth, and Fourteenth Amendment rights because he is actually, i.e. factually, innocent of the crimes, id. at 6 ¶ 7(e).
The Magistrate Judge has issued a Second Report and Recommendation ("2R&R") recommending that the Court "grant Petitioner 21 days from acceptance to file a First Amended Petition presenting only his unexhausted [sic, should be exhausted] claim (Claim 1)" and "dismiss the action without prejudice as mixed if and only if Petitioner fails to file a timely [FAP] that presents only Claim 1." Doc 23 at 4-5. The Court will adopt the Second R&R to the following extent: the Court agrees that claim 1 is exhausted, that claims 2-5 are unexhausted, and that a habeas petition containing both exhausted and unexhausted claims (a so-called mixed petition) is ultimately subject to dismissal without prejudice.
The Court will also modify and supplement the Second R&R. First, the Court acknowledges its statutory authority to deny unexhausted claims for lack of merit but will decline to exercise that authority in its discretion. The Court will then give petitioner a deadline to elect one of the four options required by Ninth Circuit law: (1) file an amended petition which contains only the exhausted claim; (2) file a notice expressing the desire to leave the petition as written, which will lead to dismissal without prejudice of the entire petition as mixed; (3) file a motion seeking "stay and abeyance" under the Supreme Court's Rhines decision, which would stay the whole action while petitioner returns to state court to try to exhaust the unexhausted claims, and (4) file a motion seeking " withdrawal, stay, and abeyance" under the Ninth Circuit's Kelly decision, which would voluntarily dismiss all four unexhausted claims and stay the remaining action while petitioner returns to state court to try to exhaust those dismissed claims. Finally, the Court will advise petitioner that if he fails timely to respond to this Order or files a response which does not clearly elect one of the four options, the petition will likely be dismissed with prejudice for lack of prosecution and for failure to comply with Court order.
In July 2013, the Court adopted the First R&R, finding claims 4 and 5 to be unexhausted and directing petitioner to file an amended petition presenting only exhausted claims no later than August 31, 2013. The Order advised petitioner that if he failed to delete unexhausted claims 4 and 5, the entire petition could be dismissed, albeit without prejudice, as a mixed petition without further opportunity for amendment. Petitioner did not amend the petition to delete claims 4 and 5. Instead, he timely filed a notice stating that he had exhausted claims 4 and 5 because the California Supreme Court had just denied a habeas petition including them. The Magistrate was skeptical that a habeas petitioner could exhaust claims after filing in federal court, but he ordered the original petition (all five claims) served on respondent, and directed respondent to file an answer or a brief in opposition to the notice of exhaustion.
To date, respondent has not filed an answer to the habeas petition. Nor has respondent filed any motion to dismiss, e.g., for failure to state a claim on which relief could be granted. Indeed, the parties appropriately have not filed any briefs on the merits beyond petitioner's opening memorandum, because the case has focused thus far on exhaustion. Accordingly, respondent filed an opposition (Doc 21) to petitioner's Notice of Exhaustion (Doc 11). Respondent contends that the California Supreme Court's denial of claims 4 and 5 did not exhaust those claims because petitioner did not complete the state-court process by remedying deficiencies identified in that court's order. Namely, petitioner never returned to the state supreme court with an amended habeas petition that articulated sufficient factual allegations. The respondent further contended that claim 2 (wrongful exclusion of evidence that the victim previously possessed firearms) and claim 3 (sentencing error by finding aggravating circumstances without sufficient evidence) are not exhausted, either, because petitioner did not assert that those actions violated any provision of the federal Constitution, did not cite federal case law, and did not cite state case law which sufficiently adopted, relied on, or discussed federal c case law. As explained below, the Magistrate and the undersigned agree with the respondent that claims 2-3 and claims 4-5 are unexhausted.
ANALYSIS: PETITIONER HAS NOT EXHAUSTED CLAIMS 2 AND 3
As the Magistrate notes, exhaustion requires a petitioner to describe, in the state's highest court, both the operative facts and the federal legal theory underlying his claim. See R&R at 3 (citing Henry, 513 U.S. at 365-66). As the Supreme Court has put it, "for purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee...." Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074 (1996). The federal habeas claim is "fairly presented if raised in the petition itself, an accompanying brief, or another similar document filed with" the state supreme court. Gentry v. Sinclair, 705 F.3d 884 (9th Cir.) (citing Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347 (2004)), cert. denied, ___ U.S. ___, 134 S.Ct. 102, reh'g denied, ___ U.S. ___, 134 S.Ct. 726 (2013).
A petitioner cannot exhaust the federal version of a claim merely by demonstrating that the state-law claim he presented to the state supreme court was similar to the federal claim. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) ("The mere similarity between a claim of federal and state error [sic] is insufficient to establish exhaustion.") (citing Duncan, 513 U.S. at 366, 115 S.Ct. 887). "Moreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion." Hiivala, 195 F.3d at 1106 (citing Gray, 518 U.S. at 162-63, 116 S.Ct. 2074); see, e.g., Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) ("Finally, at the end of his argument, Castillo claimed that [b]ecause this improper evidence was admitted, Appellant was denied a fair trial in violation of the United States and the Arizona Constitutions.' That general appeal to a fair trial' right, however, failed to exhaust Castillo's claim. It did not reference, as we require, any specific provision of the U.S. Constitution on which he rested his claim.") (citing Hiivala, 195 F.3d at 1106, and Lyons, 232 F.3d at 670).
On the other hand, a petitioner need not show that he cited the same federal authorities in his state supreme court filings as he has cited in his subsequent federal habeas petition. See MacFarlane v. Walter, 179 F.3d 1131, 1138 (9th Cir. 1999) ("Exhaustion of remedies does not require that the state have had the opportunity to pass on the claim under the particular authorities advanced in the federal habeas court.'") (quoting Hudson v. Rushen, 686 F.3d 826, 830 (9th Cir. 1982)), vacated o.g. sub nom. Lehman v. MacFarlane, 529 U.S. 1106, 120 S.Ct. 1959 (2000). And, as a practical matter, "exhaustion does not require repeated assertions if a federal claim is actually considered at least once on the merits by the highest state court." Greene v. Lambert, 288 F.3d 1081, 1096 (9th Cir. 2002), cited by Foote v. Del Papa, 244 F.Appx. 74, 77 (9th Cir. 2007). Here, of course, the California Supreme Court did not "actually consider" the merits of petitioner's claims, basing its summary denial of the petition solely on petitioner's failure to articulate and supply sufficient facts.
Ultimately, "a state prisoner procedurally defaults federal claims if he fails to raise them as federal claims in state court...." McKinney v. Ryan, 730 F.3d 903, 910 (9th Cir. 2013) (citing Coleman v. Thompson, 501 U.S. 722, 730-31, 111 S.Ct. 2546 (1991)) (emphasis added), reh'g en banc granted o.g., No. 09-99018, ___ F.3d ___, 2014 WL 1013859 (9th Cir. Mar. 12, 2014). The Magistrate thus is right to conclude that petitioner has failed to exhaust claims 2 and 3 either before or after filing this petition. This is because his briefs in the California Supreme Court make no mention of any provisions of the U.S. Constitution and cite no federal case law or other federal authority with regard to the subject matter of the claims. See, e.g., Castle v. Schriro, 414 F.Appx. 924, 925 (9th Cir. 2011) (in his first state habeas petition, petitioner "cited the Arizona sentencing statute and two Arizona cases as support. Both of the cited cases discuss the proper consideration of aggravating factors that mirror elements of the crime under state law. No federal cases are cited and no federal ...