United States District Court, E.D. California
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS,
DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT
PREJUDICE, DIRECTING CLERK OF COURT TO CLOSE CASE, AND
DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY (ECF No.
Jason Grant Hunwardsen is a state prisoner proceeding pro
se with a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. The parties have consented to the
jurisdiction of the United States Magistrate Judge. (ECF Nos.
claims raised in the instant petition either are unexhausted
or fail to state a cognizable federal claim, the Court finds
granting Respondent's motion to dismiss and dismissing
the petition without prejudice is warranted.
2013, Petitioner was convicted by a jury in the Merced County
Superior Court of inflicting corporal injury upon a
cohabitant and making criminal threats. The jury also found
true enhancements for infliction of great bodily injury and
use of a deadly weapon. Petitioner admitted the prior
conviction and prior prison allegations, and was sentenced to
an imprisonment term of twenty-six years and four months.
People v. Hunwardsen, No. F068675, 2015 WL 5943471,
at *1, 4 (Cal.Ct.App. Oct. 13, 2015). On October 13, 2015,
the California Court of Appeal, Fifth Appellate District
affirmed the judgment. Id. at *14. The California
Court of Appeal denied the petition for rehearing, and the
California Supreme Court denied the petition for review.
21, 2016, Petitioner filed the instant federal petition for
writ of habeas corpus in the United States District Court for
the Northern District of California. (ECF No. 1). On June 27,
2016, the petition was transferred to this Court. (ECF No.
4). On October 3, 2016, Respondent filed a motion to dismiss,
arguing that five of Petitioner's six claims were
unexhausted and the sole exhausted claim was not cognizable
in federal habeas. (ECF No. 17). In his opposition,
Petitioner appears to acknowledge that five of his six claims
are unexhausted and requests the Court to hold the petition
in abeyance pending resolution of the unexhausted claims in
state court. (ECF No. 23).
petitioner in state custody who is proceeding with a petition
for writ of habeas corpus must exhaust state judicial
remedies. 28 U.S.C. § 2254(b)(1). The exhaustion
doctrine is based on comity to the state court and gives the
state court the initial opportunity to correct the
state's alleged constitutional deprivations. Coleman
v. Thompson, 501 U.S. 722, 731 (1991); Rose v.
Lundy, 455 U.S. 509, 518 (1982). A petitioner can
satisfy the exhaustion requirement by providing the highest
state court with a full and fair opportunity to consider each
claim before presenting it to the federal court.
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); Duncan v. Henry, 513 U.S. 364, 365 (1995);
Picard v. Connor, 404 U.S. 270, 276 (1971). To
provide the highest state court the necessary opportunity,
the petitioner must “fairly present” the claim
with “reference to a specific federal constitutional
guarantee, as well as a statement of the facts that entitle
the petitioner to relief.” Duncan, 513 U.S. at
365; Gray v. Netherland, 518 U.S. 152, 162- 63
(1996). See also Davis v. Silva, 511 F.3d 1005, 1009
(9th Cir. 2008).
instant petition, Petitioner raises the following six claims
for relief: (1) the trial court's erroneous denial of
Petitioner's request for mistrial after the victim
testified about his prior incarceration and parole; (2) the
erroneous admission of the victim's hospital records; (3)
the erroneous admission of Petitioner's prior uncharged
violent acts against the victim under California Evidence
Code section 1109; (4) ineffective assistance of trial
counsel for not moving to redact the tape of the victim's
police interview; (5) ineffective assistance of trial counsel
for not moving to exclude one of Petitioner's prior acts
of domestic violence, which had been dismissed for
insufficient evidence; and (6) the trial court and the
parties' error in stipulating that the court reporter
need not transcribe the court's oral instructions to the
1, 2, 4, 5, and 6 are unexhausted. Although all six claims
were raised on direct appeal to the California Court of
Appeal, the only claim presented to the California Supreme
Court in the petition for review was claim 3-whether
California Evidence Code section 1109 creates a legislative
presumption of admissibility of prior uncharged acts of
domestic violence. (LDs 1, 7). Petitioner appears to
acknowledge that he raises five claims that are unexhausted,
and therefore requests the Court to hold the petition in
abeyance pending resolution of the unexhausted claims in
state court. (ECF No. 23).
Rhines v. Weber, “stay and abeyance” is
available only in limited circumstances, and only when: (1)
there is “good cause” for the failure to exhaust;
(2) the unexhausted claims are not “plainly
meritless”; and (3) the petitioner did not
intentionally engage in dilatory litigation tactics. 544 U.S.
269, 277-78 (2005). Petitioner asserts that he was not aware
that appellate counsel failed to exhaust five of his claims.
(Id.). The Ninth Circuit has held that a
petitioner's “‘impression' that counsel
had exhausted an unexhausted claim does not constitute
‘good cause' for failure to exhaust that
claim.” Wooten v. Kirkland, 540 F.3d 1019,
1024 (9th Cir. 2008). Accordingly, the Court finds that
Petitioner has failed to demonstrate good cause for his
failure to exhaust under Rhines and is not entitled
to a stay.
directs that “if a petitioner presents a district court
with a mixed petition and the court determines that stay and
abeyance is inappropriate, the court should allow the
petitioner to delete the unexhausted claims and to proceed
with the exhausted claims if dismissal of the entire petition
would unreasonably impair the petitioner's right to
obtain federal relief.” Rhines, 544 U.S. at
278. However, as discussed in section II(B), infra,
the sole exhausted claim only raises an error of state law,
which is not cognizable in federal habeas corpus. Therefore,
dismissal of the entire petition is appropriate.
Cognizability of Claim 3 in Federal Habeas
respect to claim 3, the sole exhausted claim in the petition,
Petitioner alleges that the trial court erroneously admitted
evidence of Petitioner's prior uncharged violent acts
against the victim under California Evidence Code section
1109. (ECF No. 1 at 7). Whether such evidence was incorrectly
admitted under the California Evidence Code is an issue of
state law, and errors of state law do not warrant federal
habeas corpus relief. See Estelle v. McGuire, 502
U.S. 62, 67-68 (1991) (“We have stated many times that
‘federal habeas corpus relief does not lie for errors
of state law.' Today, we reemphasize that it is not the
province of a federal habeas court to reexamine state-court
determinations on state-law questions.”) (citations
omitted); Langford v. Day, 110 F.3d 1380, 1389 (9th
Cir. 1996) (“We accept a state court's
interpretation of state ...