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Becker v. Anglea

United States District Court, E.D. California

July 11, 2019

JOSEPH BECKER, Petitioner,
v.
HUNTER ANGLEA, Respondent.

          FINDINGS AND RECOMMENDATIONS.

          GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE.

         Introduction and Summary

         Petitioner was residing in prison when, according to the jury, he issued a criminal threat against a staff person. Because of his criminal history, he was sentenced to 25 years to life imprisonment plus 7 years for his threat offense. This federal habeas action followed petitioner's partially successful attempt to exhaust his state court remedies.

         Respondent seeks to dismiss this habeas corpus action because it is comprised, in part, of unexhausted claims. (Respondent's Motion to Dismiss, ECF No. 22). Although the undersigned finds only Claim 2 and part of Claim 4 to be unexhausted, these unexhausted claims are easily disposed of on the merits via summary determination as set forth herein. Claim 4 is actually a hybrid of a due process/double jeopardy claim. The due process part is exhausted; the double jeopardy part is not, but as stated, this latter part is subject to summary dismissal. Therefore, respondent's motion to dismiss this action based on unexhausted claims should be denied; however, Claim 2 and the double jeopardy aspect of Claim 4 should be summarily dismissed. Petitioner shall have an opportunity to oppose the summary dismissal via objections to this Findings and Recommendations if he so desires. This action should proceed on Claim 1, 3, and the due process aspect of Claim 4.

         Standards on a Motion to Dismiss Unexhausted Claims

         No one in this case protests the need to exhaust habeas claims with the California Supreme Court. “Under the exhaustion requirement, a habeas petitioner challenging a state conviction must first attempt to present his claim in state court.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts”). 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); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). For a California prisoner to exhaust, he must present his claims to the California Supreme Court on appeal in a petition for review or post-conviction petition for a writ of habeas corpus in which he adequately describes the federal Constitutional issue that he asserts was violated. See Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999).

         In terms of construing the nature of claims in a pro se habeas petition, the allegations are construed liberally, and reasonable inferences are to be drawn in petitioner's favor. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). While a federal court cannot invent a claim out of liberal construction of a petition, and while claims must be stated with sufficient particularity, “[n]onetheless, a federal habeas petitioner adequately pleads an otherwise ambiguous claim by making ‘clear and repeated' references to an appended supporting brief that presents the claim with sufficient particularity. Dye v. Hofbauer, 546 U.S. 1, 4, 126 S.Ct. 5, 163 L.Ed.2d 1 (2005).” Barnett v. Duffy, 621 Fed.Appx. 496 (9th Cir. 2015). Put another way, courts should look past a potentially, legally errant or ambiguous title of a claim if the appended material makes clear what the claim really comprises. See also, Frank v. Arnold, 2019 WL 1643653 *3 (N.D. Cal. 2019) (reading the petition somewhat liberally to understand the true claims).

         Procedural Background

         This case proceeds on the First Amended Petition (“FAP”), filed after the undersigned ordered the petition dismissed with leave to amend so that the claims could be stated more clearly with references to exhaustion. ECF No. 17. The FAP (ECF No. 19) lists the following four claims:

1. Sufficiency of the Evidence for a Conviction of Criminal Threats (albeit initially stated in the title as an “unreasonable finding of facts” by the appellate court);
2.Ineffective Assistance of Advisory Counsel (with respect to a plea bargain opportunity);
3.Denial of Right to an Impartial Jury (occasioned by the substitution of jurors taking place after a suspension of proceedings on account of a natural disaster); and
4Introduction of Prior Convictions as Evidence (violated petitioner's Double Jeopardy protections and constituted an evidentiary Due Process violation).Exhaustion

         Claim ...


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