Castillo v. Haws

RUDY CASTILLO, Petitioner,

v.F B HAWS, Warden, Respondent.

1:12-cv-00302-LJO-BAM-HC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: October 23, 2012

FINDINGS AND RECOMMENDATION TO

DENY RESPONDENT'S MOTION TO

DISMISS THE PETITION (DOC. 15)

FINDINGS AND RECOMMENDATION TO

DISMISS AS MOOT PETITIONER'S

MOTION FOR STAY AND ABEYANCE

(DOC. 17)

OBJECTIONS DEADLINE:

THIRTY (30) DAYS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 through 304. Pending before the Court are two, intertwined motions. On May 14, 2012, Respondent filed a motion to dismiss the petition because it is a "mixed" petition containing some claims as to which state court remedies were not exhausted; Respondent also filed supporting documentation. In response, on June 6, 2012, Petitioner filed a request for stay and abeyance of the petition so that he might return to state court to exhaust state court remedies as tounexhausted claims. Respondent filed opposition to the request for a stay on June 20, 2012. No reply has been filed.

I. Proceeding by a Motion to Dismiss

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. -, -, 131 S.Ct. 13, 16 (2010) (per curiam).

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court...."

The Ninth Circuit has allowed respondents to file motions to dismiss pursuant to Rule 4 instead of answers if the motion to dismiss attacks the pleadings by claiming that the petitioner has failed to exhaust state remedies or has violated the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss a petition for failure to exhaust state remedies).

Further, a respondent may file a motion to dismiss after theCourt orders the respondent to respond, and the Court should use Rule 4 standards to review a motion to dismiss filed before a formal answer. See, Hillery v. Pulley, 533 F. Supp. 1189, 1194 & n.12 (C.D.Cal. 1982).

In this case, upon being directed to respond to the petition by way of answer or motion, Respondent filed the motion to dismiss. The material facts pertinent to the motion are to be found in the pleadings and in copies of the official records of state judicial proceedings which have been provided by the parties, and as to which there is no factual dispute.

The Court will therefore review Respondent's motion to dismiss pursuant to its authority under Rule 4.

II. Motion to Dismiss the Petition

A. Background

Petitioner's petition (doc. 1) was filed on February 16, 2012, and transferred to this division of this Court on February 29, 2012.

In the petition, Petitioner alleges that he is an inmate of the California State Prison at Los Angeles County (CSP-LAC) serving a sentence of life without the possibility of parole plus one year for first degree murder in the course of a robbery and while armed with a firearm in violation of Cal. Pen. Code §§ 187(a), 190.2(a), and 12022(a). (Pet. l.)

Petitioner raises the following claims in the petition: 1) Petitioner's rights under the Fifth Amendment and the Miranda decision were violated when he was arrested at gunpoint and questioned without understanding that he had a right to refuse to answer questions and to wait for an attorney to come and helphim, and without ever indicating that he did so understand; 2) Petitioner's Sixth Amendment right to the effective assistance of counsel was violated by his trial counsel's prejudicial failure to move to suppress Petitioner's extra-judicial statement after failing to ask Petitioner any questions concerning the mode of his arrest or whether he ever indicated that he understood his rights. (Id. at 5.)

The Court has reviewed documents filed by Respondent in support of the motion to dismiss, namely, a petition for review filed by Petitioner in the California Supreme Court (LD 1,¹ case number S175423), a petition for writ of habeas corpus filed in the California Supreme Court (LD 3, case number S194485), and orders denying those petitions (LD 2, LD 4).

Petitioner's ineffective assistance claims related to the alleged Miranda violation were not raised in Petitioner's petition for review in the course of his direct appeal. (LD 1.) Further, the copy of the petition for writ of habeas corpus filed in the California Supreme Court shows that Petitioner raised the claim that his Miranda rights were violated by admission of a statement made to law enforcement officers during post-arrest questioning because he did not understand his rights or indicate that he understood and waived them. (LD 3, 7.) Petitioner also raised a claim that his trial counsel was ineffective because he failed to argue that Petitioner's first statement to police violated Miranda because Petitioner did not waive his rights. (Id. at 9.)

Petitioner did not expressly allege as grounds for the habeas petition his trial counsel's alleged failure to ask Petitioner questions about the mode of his arrest or any indication by Petitioner to the interrogating officers that he understood his rights. However, Petitioner set forth details regarding his interrogation and alleged specifically that he did not state or express that he understood and waived his rights (id. at 7); further, he alleged that counsel did not respond to questions from appointed appellate counsel regarding why he did not challenge the Miranda violation (id. at 9), and Petitioner referred to appellate counsel's declaration, in which appellate counsel noted that trial counsel had sent a page of the preliminary hearing transcript showing that a detective who questioned Petitioner after his arrest testified in court that Petitioner said during the interrogation that he understood his rights. (Decl., first page.)

Also attached to the petition filed in the California Supreme Court was a copy of the decision of the Superior Court of the State of California for the County of Madera (MCSC) in a habeas corpus proceeding filed by Petitioner. The decision detailed Petitioner's claim regarding his trial counsel's failure to move to suppress Petitioner's confession. It summarized the evidence admitted at an evidentiary hearing held in the MCSC on the ineffective assistance claim, including trial counsel's testimony that he had asked Petitioner if Petitioner had told the detective that Petitioner understood his rights, and that Petitioner had responded that he nodded "yes" to the detective, indicating that he had understood his rights. (MCSC order at 2.)The MCSC's decision also noted that at the evidentiary hearing, Petitioner denied having nodded "yes," or having told his counsel that he had done so. (Id.) The MCSC noted that one response of the detective in the transcript of the interrogation suggested that Petitioner had nodded that he understood his rights; further, counsel had successfully moved to exclude another statement. The MCSC expressly determined that in light of the all the evidence, counsel was credible, and Petitioner was not. (Id. at 2-3.)

B. Exhaustion of State Court Remedies

A petitioner who is in state custody and wishes to challenge collaterally a 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); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).

A petitioner can satisfy the exhaustion requirement by providing the highest state court with the necessary jurisdiction a full and fair opportunity to consider each claim before presenting it to the federal court, and demonstrating that no state remedy remains available. Picard v. Connor, 404 U.S. 270, 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). 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'sfactual and legal basis. Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 (1992), superceded by statute as stated in Williams v. Taylor, 529 U.S. 362 (2000) (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; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). 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

...