United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE.
case returns from the state courts after it had been remanded
for full exhaustion of petitioner's competency to stand
trial claim, Claim 3. After a complete discussion of the case
history and the merits, the undersigned recommends that Claim
3 be denied.
request to extend time to file a petition was denied, the
petition was filed April 14, 2017. ECF No. 8. After a First
Amended Petition was filed, hereafter “the Petition,
” the court dispensed with any request for a stay to
further exhaust as moot, and ordered a filing of missing
pages. On January 15, 2015, respondent was ordered to answer
and the undersigned recommend that Claim 4 be dismissed. ECF
No. 17. That recommendation was adopted. ECF No. 20.
Respondent filed an Answer, ECF No. 27, and filed, inter
alia, an exhibit showing the exhaustion by petitioner of his
state habeas petition, ECF No. 25. This exhaustion is
referenced herein as the “interim” exhaustion,
and the state supreme court's decision is discussed
further infra. Petitioner filed his Traverse. The
undersigned asked for further briefing on the competency to
proceed claim. Further briefing was received from respondent,
and the matter was taken under submission.
and Recommendation on the case were filed on March 23, 2016.
ECF No. 44. The undersigned recommended that Claims 1 and 2
be denied. The undersigned further found that Claim 3 needed
further exhaustion. Key to the undersigned's decision was
the fact that apparently for the first time, petitioner had
filed a document with this court clearly showing that the
trial judge, ex parte, had ordered a mental examination for
petitioner. This was important because this document
demonstrated the incorrectness of the primary factual premise
of the Court of Appeal on the competency issue when it denied
the appeal-that the trial judge had never ordered a
competency examination. The undersigned was concerned that
this ex parte procedure could be seen as showing the trial
judge's “doubt” about petitioner's
competency; yet no competency hearing process was undertaken.
Because the Court of Appeal had clearly not been aware of
this document, the undersigned, citing Gonzalez v.
Wong, 667 F.3d 965, 979 (9th Cir. 2011), recommended
that petitioner be required to undertake exhaustion once
again because the state courts had not been shown the
critical evidence when making their decisions. The full
discussion appears in ECF No. 44.
receiving somewhat strident objections by Respondent, the
District Judge adopted the Recommendation, in its entirety,
stayed entry of judgment on Claims 1 and 2, and ordered the
remand to the state court for further exhaustion. ECF No. 47.
first went to Superior Court on remand. This series of
petitions commencing with the Superior Court is referenced as
the “post-remand” petition. This decision is
discussed extensively infra, but suffice to say here
that the petition was denied on the procedural grounds that
the claim had been raised before and denied by the California
Supreme Court (the interim habeas), and in any event no prima
facie case for relief was made out on the merits. This
decision appears at several locations in the docket, but the
undersigned will use ECF 49, electronic pagination at 19-23.
The Court of Appeal denied the following petition “on
the merits, ” ECF No. 50 at electronic page 23. The
California Supreme Court issued a further denial on
procedural grounds citing three cases, including In re
Robbins, 18 Cal.4th 770, 780 (1988) ECF No. 51. The
petition and decision of the state supreme court is part of
the “post-remand petition, ” and again, is
briefing was received from the parties, and this Findings and
Superior Court first found that this court may have been
“unaware” that petitioner had previously
presented his competency claim to the state courts, referring
to the state habeas petition filed while this federal case
was pending, referenced here as the “interim”
petition. This was not the case as the Findings and
Recommendation referred to the Court of Appeal's
discussion of the claim and made findings thereon. This
appellate decision was denied review in the state supreme
court. In addition, the docket in this case clearly reflected
that petitioner had proceeded in state habeas corpus during
the pendency of the federal proceedings to exhaust this
claim. The three case citations by the state supreme court
simply muddied the exhaustion waters, and were not discussed
by respondent in the Answer or supplemental briefing, or this
court in the Findings and Recommendations.
interim state habeas petition was denied citing People v
Duvall, 9 Cal.4th 464, 474 (1995); In re
Waltreus, 62 Cal. 2d 218, 225 (1965); In re
Swain, 34 Cal. 2d 300, 304 (1949). ECF No. 25.
Duvall and Swain at the page citations
given indicate that the allegations are so insufficient that
the merits of the claims cannot be reached. The citations
generally, but not always, indicate that the claims remain
non-exhausted for federal exhaustion purposes. See Wilson
v. Hedgpeth, 2012 WL 6201358 (N.D. Cal. 2012),
discussing Kim v. Villalobos, 799 F.2d 1317 (9th
Cir. 1986). The Waltreus citation, indicating that
one cannot raise in habeas what has already been raised on
direct review is neither a procedural bar nor a ruling on the
merits. Forrest v. Vasquez, 75 F.3d 562, 564 (9th
Cir. 1996). A Waltreus citation requires the federal
court to “look through” the state supreme court
citation to the last reasoned decision, id, here the
Court of Appeal decision on direct review. See Ylst v.
Nunnemaker, 501 U.S. 797, 806 (1991); Johnson v.
Williams, 568 U.S. 289 (n.1) (2013).
the undersigned was faced with a directive from the state
supreme court that petitioner had not exhausted his
incompetency claim in habeas, but also that this court was to
refer to the Court of Appeal decision. The
“look-through” doctrine would focus the decision
in this court on the last explained decision, i.e., that of
the Court of Appeal.
under Supreme Court and Ninth Circuit precedent, simply
“presenting” a claim to the state courts does not
necessarily “exhaust” a claim for federal habeas
corpus purposes. A habeas claim presented in state court, and
ultimately to the state's highest court must be presented
in such a way that the state courts have a “fair
opportunity” to rule on the merits of a claim,
Picard v. Connor, 404 U.S. 270, 276 (1971);
Middleton v. Cupp, 768 F.2d 1083, 1086 (9th
Cir.1986). A fair presentation includes a showing of the
important or critical facts necessary to support the claim.
If the critical facts are first presented in federal court
without the opportunity of the state courts to review them,
the claim is not exhausted. Aiken v.
Spaulding, 841 F.2d 881, 884(n.3) (9th Cir.1988);
see also Gonzales v. Wong, 667 F.3d 965, 979 (9th
Cir. 2011) cited in the initial Findings and Recommendations.
found by the Superior Court, the critical reports
demonstrating that the trial judge had ordered the mental
examination were apparently not presented to the California
Supreme Court on the interim habeas, albeit they were
referenced in that interim state petition. There is no record
of the state supreme court requesting that the documentation
was the point of remand to the state courts-the critical
facts concerning the trial judge's order for a mental
examination, i.e., the actual documentation, were unavailable
to the Court of Appeal and California Supreme Court when the
claim was presented either on direct review, or in the
interim habeas. As stated above, the Superior Court found
this fact on remand. As recounted in the Findings and
Recommendations, the appellate court had made the finding
that there was no evidence to show that the trial judge had
ordered the mental examination. As found previously, the
dispositive evidence unequivocally demonstrating that the
trial judge had ordered the mental examination ex parte, and
received its results ex parte, was first presented in federal
undersigned noted, however, that the state courts could make
a factual finding about petitioner's diligence, i.e., why
the critical documentation was not in the record or otherwise
supplemented into the record. It was necessary to understand
when petitioner came in possession of the critical evidence
because exhaustion requires a diligent presentation of the
operative facts to the state courts. In re Robbins,
supra. Unfortunately, no such factual finding was
attempted in any state court on remand. Neither the Superior
Court nor the state supreme court made an explained finding
above was critical evidence to the undersigned because the
probable inference to be drawn from a trial judge ordering a
mental examination was the inference that the trial judge
maintained some type of doubt about petitioner's
competence. The undersigned found it unreasonable to believe
that the criminal courts ordered mental examinations for no
reason, or that there was some ...