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Jones v. Warden, Kern Valley State Prison

United States District Court, E.D. California

November 15, 2017

ANTHONY JONES, Petitioner,
v.
WARDEN, KERN VALLEY STATE PRISON, Respondent.

          FINDINGS AND RECOMMENDATIONS

          GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE.

         Introduction and Summary

         This 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.

         Case History

         After a 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.

         Findings 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.

         After 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.

         Petitioner 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 discussed infra.

         Supplemental briefing was received from the parties, and this Findings and Recommendations followed.

         Discussion

         1. Exhaustion

         The 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.

         The 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).[1]

         Thus, 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.

         Moreover, 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.

         As 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 be filed.

         This 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 habeas.

         The 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 regarding diligence.

         The 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 ...


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