United States District Court, E.D. California
ANDREW L. MACKEY, Petitioner,
R.T.C. GROUNDS, Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, Magistrate Judge.
Petitioner is a California prisoner, convicted of several child-molestation-related offenses, serving a sentence of 66-years-to-life entered in 2008 in the Superior Court of Sacramento County. He is proceeding through counsel with an application for writ of habeas corpus under 28 U.S.C. § 2254. Respondent has filed a motion to dismiss in which respondent argues that petitioner has failed to exhaust state court remedies with respect to his claims, and that the claims are time-barred. For the reasons set forth below, the court agrees with respondent in both respects.
II. Petitioner's Claims
Petitioner presents three claims for relief in his petition:
1. Petitioner's trial counsel rendered ineffective assistance of counsel in violation of the Sixth Amendment by failing to adequately investigate petitioner's competence to stand trial.
2. The trial court's failure to conduct a competency hearing violated petitioner's right to due process arising under the Fourteenth Amendment.
3. Use of a prior conviction as evidence at trial violated the terms of the plea agreement concerning the prior conviction.
III. Failure To Exhaust
The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor , 404 U.S. 270, 276 (1971).
Petitioner presented the three claims he presents in this action to the California Supreme Court through a petition for collateral relief filed November 15, 2011. The petition was denied by the California Supreme Court on March 14, 2012. In support of the denial, the court cited three cases, including " In re Swain, (1949) 34 Cal.2d 300 , 304" without providing any further clarification or comment. The citation to Swain, stands for the following proposition:
We are entitled to and we do require of a convicted defendant that he allege with particularity the facts upon which he would have a final judgment overturned and that he fully disclose his reasons for delaying in the presentation of those facts. This procedural requirement does not place upon an indigent prisoner who seeks to raise questions of the denial of fundamental rights in propria persona any burden of complying with technicalities; it simply demands of him a measure of frankness in disclosing his factual situation.
The application for the writ is denied without prejudice to the filing of a new petition which shall meet the requirements above specified.
The deficiency identified in Swain can be cured in a subsequent state petition for collateral relief. See Kim v. Villalobos , 799 F.2d 1317, 1319 (9th Cir. 1986). When the California Supreme Court denies claims with the citation to Swain referenced above, the court must make an independent review of the record to determine if the claims were alleged with sufficient particularity to satisfy the fair presentation requirement. Id. at 1319-20. If the claims were fairly presented, the court will not require that the petitioner return to the California Supreme Court to attempt to exhaust state court remedies.
The court has reviewed the petition presented to the California Supreme Court. While petitioner does present facts in support of his claims, he fails to explain his delay in the presentation of those facts. This being the case, it appears petitioner could attempt to explain his delay in presenting the facts supporting his claims to the California Supreme Court and then possibly obtain a ruling as to the merits of his claims. Therefore, petitioner has not exhausted state court remedies. Normally, dismissal in this court for failure to exhaust state court remedies would be without prejudice. However, because the court also finds that petitioner's claims are time-barred, as described below, the court will recommend that dismissal be with prejudice.
IV. Statute of Limitations
Title 28 U.S.C. § 2244(d)(1) provides:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...