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Covarrubias v. Gower

United States District Court, N.D. California

May 16, 2014

HERMAN MICHAEL COVARRUBIAS, Petitioner,
v.
ROBERT GOWER, Warden, Respondent.

ORDER DENYING MOTIONS TO DISMISS AND TO PROCEED JOINTLY WITH CO-DEFENDANT

EDWARD M. CHEN, District Judge.

I. INTRODUCTION

Petitioner filed this action pursuant to 28 U.S.C. § 2254 to challenge his 2008 conviction. The matter is now before the Court for consideration of Respondent's motion to dismiss for failure to exhaust state judicial remedies and Petitioner's response thereto. The Court also will address some miscellaneous motions.

II. BACKGROUND

Petitioner was convicted in Santa Clara County Superior Court of nineteen counts of grand theft and three counts of forgery, and sentence enhancement allegations were found true. On October 10, 2008, Petitioner was sentenced to a term of nineteen years and eight months in state prison. He unsuccessfully appealed his conviction. Petitioner also filed several petitions for writ of habeas corpus in state courts that were unsuccessful.

Petitioner then filed this action. His federal habeas petition asserted twenty claims. The Court determined that two of the claims were not cognizable, and issued an order to show cause why the petition should not be granted on the rest of the claims. See Docket # 16.

Respondent now moves to dismiss the federal petition on the ground that state court remedies have not been exhausted for three of the claims. Petitioner responds to the motion to dismiss with a confusing argument that "he has proven... that he has exhausted all his remedies in the state level" and "is conceding/dropping the 3 claims/issues brought up by the Respondent." Docket # 26 at 3. Petitioner requests to go forward with his other claims.

III. DISCUSSION

A. Respondent's Motion To Dismiss

Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). Although the exhaustion requirement is not jurisdictional and instead is a matter of comity, see Granberry v. Greer, 481 U.S. 129, 133-34 (1987), the court generally may not grant relief on an unexhausted claim, see 28 U.S.C. § 2254(b)(1).

The exhaustion-of-state-remedies doctrine reflects a policy of federal-state comity to give the state "the initial "opportunity to pass upon and correct" alleged violations of its prisoners' federal rights.'" Picard v. Connor, 404 U.S. 270, 275 (1971) (citations omitted). Both the legal basis and the factual basis must be fairly presented. It is not sufficient to raise only the facts supporting the claim; rather, "the constitutional claim... inherent in those facts" must be brought to the attention of the state court. See id. at 277. The state's highest court must be alerted to the fact that the prisoner is asserting claims under the United States Constitution in order to be given the opportunity to correct alleged violations of federal rights. Duncan v. Henry, 513 U.S. 364, 365-66 (1995). With regard to the factual basis for the claim, "the petitioner must only provide the state court with the operative facts, that is all of the facts necessary to give application to the constitutional principle upon which [the petitioner] relies.'" Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (citations omitted).

Respondent moves to dismiss the petition for failure to exhaust state court remedies for Claims 17, 19 and 20. Notwithstanding Petitioner's apparent concession that these three claims are unexhausted and should be dismissed, the Court will deny the motion.

Respondent contends that Claim 17 and Claim 19 of the federal petition "allege ineffective assistance of trial counsel for various reasons, but those claims were framed as ineffective assistance of appellate counsel in claims 20 and 22 of the state habeas corpus petition." Docket # 22 at 3 (emphasis in source). Respondent errs. The habeas petition presented to the California Supreme Court mentioned both trial and appellate counsel as being ineffective. See Docket # 22 at 206 (Claim 20 described as: "IAC - appellate counsel: Petitioner's trial counsel was ineffective") and 208 (Claim 22 described as: "IAC - appellate counsel: Petitioner's trial counsel was ineffective"). The state habeas petition also referred to counsel's conduct as violating Petitioner's "right to counsel, as guaranteed by Amendment 6 of U.S. Constitution." Docket # 22 at 206. The Sixth Amendment citation suggests a trial counsel problem because the Sixth Amendment is the source of the right to trial counsel, whereas the Fourteenth Amendment is the source of the right to appellate counsel. See generally Evitts v. Lucey, 469 U.S. 387, 392 (1985). Moreover, the facts alleged in Claims 20 and 22 of the state habeas petition plainly refer to conduct associated with a trial attorney rather than an appellate attorney, as Claim 20 pertains to the failure to present certain evidence and Claim 22 pertains to the failure to call a witness. See Docket # 22 at 206 and 206. Respondent's argument that Claim 17 and Claim 19 of the federal petition are unexhausted because Petitioner did not present them as ineffective assistance of trial counsel claims in state court is rejected.

Respondent next contends that Petitioner failed to exhaust the claim that is Claim 20 in his federal petition, i.e., the claim that the prosecutor misled the jury by suggesting that Petitioner was "involved and knew about all the loan transactions and that he was in a conspiracy." Docket # 1 at 12. Respondent is wrong. The habeas petition filed in the California Supreme Court argued the same facts and mentioned a federal due process violation, although Petitioner also cast it as a claim for a violation of his Eighth Amendment right to be free from cruel and unusual punishment. See Docket # 22 at 207. Compare Docket # 1 at 12 (federal petition arguing that the that the 1003 loan applications were not signed by him and the "prosecutor used a blanket statement that the broker/petitioner was involved and knew about all the loan transactions and that he was in a conspiracy. This is simply not true.") with Docket # 22 at 207 (state habeas petition arguing that the 1003 loan applications were not signed by the broker and "prosecutor used a blanket statement that the broker was involved and knew about all the loan transactions and that he was in a conspiracy. This is simply not true.") The manner in which Petitioner presented the due process claim may not have been likely to result in success in the California Supreme Court (because he coupled it with an Eighth Amendment claim), but the exhaustion analysis focuses less on the quality of the presentation and more on whether the information is present somewhere in the state court ...


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