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Frazier v. Warden

United States District Court, E.D. California

June 12, 2017

WARDEN, Respondent.




         Petitioner filed a petition for writ of habeas corpus on April 5, 2017. (Doc. 1.) He filed a first amended petition on April 20, 2017, along with a consent/decline form indicating he consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 7, 8.)

         After conducting a preliminary screening of the petition, it appeared that Petitioner's sentence had been served and the Court was without jurisdiction to entertain the petition. Therefore, on May 9, 2017, the Court issued an order directing Petitioner to show cause why the petition should not be dismissed for lack of jurisdiction. (Doc. 9.) On May 30, 2017, Petitioner responded to the order to show cause and set forth the terms of his sentence which included a probation term of five years imposed on October 28, 2014. (Doc. 10, 11.) As it appears Petitioner is currently serving a probation term, the Court has jurisdiction to consider the petition. Accordingly, the order to show cause will be discharged.

         Also on May 30, 2017, Petitioner submitted a Second Amended Petition which has been lodged with the Court. (Doc. 12.) Pursuant to Fed.R.Civ.P. 15(a)(1), a party may amend its pleading once as a matter of course. Further amendments are permitted only with the opposing party's consent or the court's leave. Here, Petitioner has already amended his pleading once; therefore, he may file the Second Amended Petition only with leave of court. Rule 15(a)(2) states that leave should be freely given when justice so requires. In the interest of justice, the Court will order the Second Amended Petition to be filed.

         Upon review of the Second Amended Petition, the Court finds that Petitioner fails to present a cognizable claim for relief. For the reasons below, the Court will SUMMARILY DISMISS the petition.


         On December 30, 2010, Petitioner was convicted in the Tuolumne County Superior Court of felony diversion of funds (Cal. Penal Code §484b). (Doc. 11 at p. 2.) On March 9, 2011, he was sentenced to sixty days in jail, five-year's probation, and restitution in the amount of $28, 027.42. (Id.) Thereafter, the Office of the California Attorney General filed a motion with the trial court seeking an order revoking Petitioner's contractor's license pursuant to Cal. Bus. & Professions Code section 7106. (Doc. 12, Ex. 8 at p. 12.) Following a hearing on the matter, the trial court ordered the petitioner's license revoked. (Id. at p. 13.) Petitioner then completed his jail term, and his probation was transferred to Alameda County where he resided thereafter. (Doc. 11 at p. 2.)

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). On August 6, 2013, the Fifth DCA reversed the judgment as well as the order revoking Petitioner's contract license. (Doc. 12, Ex. 8.) The matter was “remanded for possible retrial, and rehearing under [California] Business and Professions Code section 7106.” (Id. at p. 20.)

         On October 25, 2013, the trial court held a hearing after remittitur on appeal. (Doc. 12, Ex. 1.)

         Petitioner was retried and found guilty in Tuolumne County Superior Court on September 25, 2014, of diversion of construction funds, a felony, pursuant to Cal. Penal Code § 484b. (Doc. 12, Ex. 3 at p. 2.) On October 28, 2014, he was sentenced to serve sixty days in jail, with credit for time served of thirty actual days. (Doc. 10 at p. 5.) The sentence was suspended and Petitioner was admitted to probation for five years. (Id.) In addition, he was ordered to pay restitution in the amount of $28, 072.42. (Id.) Further, it was ordered that his contractor's license be revoked. (Id. at p. 6.)

         Petitioner appealed to the Fifth DCA, and the judgment was affirmed on November 28, 2016. (Doc. 12, Ex. 3.) He filed a petition for review in the California Supreme Court, and the petition was denied on February 15, 2017. (Doc. 12, Ex. 5.)


         A. Preliminary Review of Petition

         Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief . . . .” Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed.

         B. Failure to State a Cognizable Federal Claim

         Petitioner presents six claims for relief: 1) The trial court erred in using an Ex Parte Order to re-open the same issues that were previously resolved by the appellate court; 2) The trial court failed to resolve the four issues identified on appeal in Petitioner's retrial on September 17, 2014; 3) The appellate court erred in stating Petitioner did not file opposition papers; 4) The trial court failed to give unanimity instructions; 5) The trial court erred in failing to give limiting instructions when the petitioner's bank records were introduced before the jury over his objection; and 6) Petitioner's Fifth Amendment rights were violated by being placed twice in jeopardy for the same offense. Upon review of these claims, it is apparent Petitioner fails to state a cognizable federal claim. For the reasons that follow, the Court will dismiss the petition.

         1. Order After Remittitur

         Petitioner references the appellate court's opinion on the initial appeal wherein the court ordered “[t]he judgment and the order revoking defendant's license are reversed in their entirety.” (Doc. 12 at p. 5.) Petitioner complains that the trial court issued an order setting the matter for hearing following remittitur and then held a hearing in which Petitioner was re-charged with Cal. Penal Code section 484b. He was subsequently found guilty in a jury trial. He claims this was in error since the issue of his conviction under 484b had already been settled by the appellate court.

         Petitioner apparently misunderstands the appellate process. As Petitioner notes, the appellate court reversed the judgment in its entirety and “remanded [the matter] for possible retrial, . . . .” (Doc. 12, Ex. 8 at p. 20.) Subsequently, the appellate court issued a remittitur which transferred the case back to the trial court. See In re Anna S., 180 Cal.4th 1489, 1500 (2010). The remittitur effectively terminated the appellate court's jurisdiction over the case and revested jurisdiction in the trial court. Snukal v. Flightways Mfg, Inc., 23 Cal.4th 754, 774 (2000). Per California procedure, following issuance of the remittitur, all further proceedings took place in the trial court. Thus, there was nothing improper in the trial court issuing an order to set the matter for hearing following remittitur.

         Petitioner complains that he should not have been retried, but his argument is plainly meritless. The appellate court's remittitur specified that the matter was being remanded for possible retrial. Therefore, the trial court acted within the scope of its jurisdiction in conducting a retrial. Petitioner contends that the retrial should have been limited to whether he violated Cal. Bus. & Professions Code section 7106, but this is clearly a misreading of the appellate court's order. The court stated, “The matter is remanded for possible retrial, and possible rehearing under Business and Professions Code section 7106.” (Doc. 12, Ex. 8 at p. 20.) The remand obviously concerned two separate proceedings: 1) a retrial on possible criminal charges including a violation of Cal. Penal Code section 484b; and 2) a rehearing under section 7106 concerning revocation of his contractor's license. Petitioner appears to imply that the language following “rehearing” also applies to the retrial, but this is illogical. First, the revocation of the contractor's license under section 7106 is not a criminal proceeding and does not proceed to a criminal trial. Rather, it involves, as it did in the previous trial court proceedings, a separate hearing following conviction. Second, the appellate court's discussion immediately preceding the order clearly detailed the two separate proceedings and clarified that the remittitur concerned the two distinct proceedings. Indeed, the paragraph before the disposition was titled “The Order Revoking Defendant's Contractors License Must Be Reversed Along With The Conviction.” (Id.) Therefore, Petitioner's argument that the appellate court's order barred retrial under section 484b is plainly without merit.

         a. Exhaustion

         In addition, the claim is unexhausted. A petitioner who is in state custody and wishes to collaterally challenge his conviction by 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. Duncan v. Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis).

         Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme Court reiterated the rule as follows:

In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners “fairly presen[t]” federal claims to the state courts in order to give the State the “opportunity to pass upon and correct alleged violations of the prisoners' federal rights” (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.

Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating:

Our rule is that a state prisoner has not “fairly presented” (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is “self-evident, " Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds. Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . .
In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is.

Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001).

         The Court has reviewed the petitions for review filed with the California Supreme Court. The instant claim was not presented and is therefore unexhausted and should be dismissed. Rose v. Lundy, 455 U.S. 509, 521-22 (1982). Nevertheless, as discussed above, the claim is plainly without merit. The Court is authorized to deny the claim notwithstanding the failure to exhaust. See 28 U.S.C. § 2254(b)(2).

         b. State Law Issue

         The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2254(a) states:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to a judgment of a State court only on the ground that he is in custody inviolation ...

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