Catlin v. Ayers

Filing 31

ORDER Regarding Exhaustion Status of Petitioner's Petition for Writ of Habeas Corpus and Ordering Briefing on Stay and Abeyance signed by Judge Oliver W. Wanger on 02/17/2009. Briefing due by 3/18/2009. (Flores, E)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 P e titio n e r Steven David Catlin ("Catlin") filed his petition for writ of h a b e a s corpus, under 28 U.S.C. 2254, September 24, 2008. Respondent Robert W o n g ("the Warden") filed an answer to the petition October 24, 2008. Counsel fo r Catlin and for the Warden filed a joint statement regarding the exhaustion s ta tu s of Catlin's federal petition December 12. Concurrently, counsel for Catlin file d a declaration setting forth the parties respective arguments regarding the c la im s where the exhaustion status was disputed. U n d e r the Antiterrorism and Effective Death Penalty Act ("AEDPA"), state p r is o n e r s must exhaust all available state remedies before a federal court may ________________ * Robert Wong is substituted for his predecessor as Acting Warden of San Q u e n tin State Prison, pursuant to Federal Rule of Civil Procedure 25(d). R e s p o n d e n t. vs. R O B E R T WONG*, Acting Warden o f San Quentin State Prison, S T E V E N DAVID CATLIN, P e t it i o n e r , ) ) ) ) ) ) ) ) ) ) ) C a s e No. 1:07-CV-01466-OWW D E A T H PENALTY CASE O r d e r Regarding Exhaustion S ta tu s of Petitioner's Petition for W r it of Habeas Corpus and O r d e r in g Briefing on Stay and A bey ance U N IT E D STATES DISTRICT COURT E A S T E R N DISTRICT OF CALIFORNIA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 g r a n t them habeas relief. 28 U.S.C. 2254(b)(1)(A); see also O'Sullivan v. Boerckel, 5 2 6 U.S. 838, 839 (1999). To satisfy the exhaustion requirement of 2254, habeas p e titio n e r s must "fairly presen[t] federal claims to the state courts in order to give th e State the opportunity to pass upon and to correct alleged violations of its p riso n e rs ' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995). Fair p r e s e n ta tio n of a federal claim in state court requires reference to both the o p e r a tiv e facts and federal legal theory, such as a specific provision of the federal c o n s titu tio n or citation to federal or state cases involving the legal standard for a fe d e r a l constitutional violation. Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2 0 0 5 ) (citing Duncan v. Henry; Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2 0 0 3 )). However, general appeals to broad constitutional guarantees, such as due p r o c e s s , are not sufficient to present the substance of such a claim to the state c o u r t, Gray v. Netherland, 518 U.S. 152, 163 (1996), and an argument that is e ss e n tia lly one of state law does not alert a state court to the federal nature of a c la im . Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996). A g r e e d Exhausted T h e parties agree the following claims are exhausted: Claims 1; 2; 4; 5; 6; 7; 9 ; 12 (regarding the Sixth - right to effective assistance of counsel, Fifth and F o u r te e n th Amendments - due process); 13; 15; 17 (to the extent it relies on the S ix th and Fourteenth Amendments - confrontation rights); 21; 23 (to the extent it r e lie s on the Fifth and Fourteenth Amendments due process rights); 26Q; 27; 28; 2 9 ; 30; 31; 32 (as it relates to the cumulative effect of the guilt phase claims raised in the state Appellant's Opening Brief); 34; 35A, 35B, and 35C; 36; 37; 38 (to the e x te n t it is based on the cumulative effect of the state's misconduct and counsel's in e ffe c tiv e n e s s ); 39 (to the extent it is based on facts and claims alleged in the s ta te petition at pages 390-392); 40; 41; 42; 43A (to the extent it relies on the Eighth O R e E xh stn C a t 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 A m e n d m e n t) and 43B (to the extent it relies on the Eighth and Fourteenth A m e n d m e n ts ); 44; 47C (to the extent it relies on the Eighth and Fourteenth A m e n d m e n ts and to written jury findings of aggravated factors); 48 (to the extent it relies on the Eighth Amendment); 49 (to the extent it relies on the Fifth, Eighth a n d Fourteenth Amendments); 50; 67 (as it relates to the use of lethal injection); a n d 68 (to the extent it is based on the cumulative effect of errors alleged in the A p p e lla n t's Opening Brief at 254-256). A g r e e d Unexhausted T h e parties agree the following claims are unexhausted: Claims 3; 12 (to th e extent it relies on the Eighth Amendment); 17 (to the extent it is based on the F ifth and Fourteenth Amendment due process clause and the Eighth A m e n d m e n t) ; 23 (to the extent it relies on the Eight Amendment); 26P; 32 (as it r e la te s to the cumulative effect of all guilt phase claims other than those raised in th e state Appellant's Opening Brief); 33; 35D and 35E; 38 (to the extent it is based o n grounds not alleged in the state petition - juror misconduct and trial court e r ro rs ); 39 (to the extent it is based on facts not asserted in state court); 43A and 4 3 B (to the extent it is based on the Fifth and Sixth Amendments); 45; 46; 47A (a g r e e d unexhausted to the extent it relies on the Fifth, Sixth and Fourteenth A m e n d m e n ts ), 47B, 47C (to the extent it relies on International Law and relates to u n a n im o u s jury findings of aggravating factors); 48 (with regard to the Fifth and F o u r te e n th Amendments); 49 (with regard to the Sixth Amendment and to the e x te n t it relies on Apprendi); 51; 52; 54; 55; 56; 58 subclaims on pages 533-544 s ta rtin g with "Multiple Counts of Special Circumstances and Aggravation C la im s " and ending with "Failure to Inform the Jury that it Need Not be U n a n im o u s as to Mitigating Circumstances," subclaim entitled "Failure to R e q u ir e Unanimity as to Aggravating Circumstance," and subclaims on pages O R e E xh stn C a t 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5 4 6 -5 5 3 - starting with "Burden of Proof and Persuasion Claims" and ending w ith "Cumulative Constitutional Error"; 59; 60; 61; 62; 63; 64; 65; 66; 67 (as it r e la te s to lethal gas and International Law); 67(II); and 68 (to the extent it is based o n unexhausted claims). A g r e e d Partially Exhausted and Partially Unexhausted T h e parties agree Claim 58, the subclaim entitled "Death Eligibility" (to the e x te n t it relied on the Eighth Amendment) is exhausted, and agree that it is p a r tially unexhausted (to the extent it relies on the Fifth, Sixth and Fourteenth A m e n d m e n ts). A g r e e d Partially Unexhausted T h e parties agree the following claims were unexhausted in part: Claim 8 (to the extent it asserts violations of international law, Treaties, N o rm s , and Customs); C la im 10 (to the extent it is based on the Eighth Amendment) ; C la im 14 (to the extent it is predicated on the Fifth Amendment due p ro ce ss ground); C la im 16 (to the extent it is based on the Eighth Amendment right to a re lia b le guilt and penalty phase verdict and judgment) ; C la im 20 (to the extent it is predicated on non-due process grounds, like th e Fifth - fair trial, Sixth - confront evidence, and Eighth Amendments - reliable co n v ictio n and sentence); C la im 24B (with regard to the Eighth Amendment), 24C (with regard to the S ix th and Eighth Amendments), 24D (with regard to the Sixth Amendment), and 2 4 F (with regard to the Sixth and Eighth Amendments); C la im 26B (with regard to the Fifth Amendment), 26E (with regard to the F ifth Amendment), 26J (with regard to the Fifth and Eighth Amendments), 26K O R e E xh stn C a t 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 (w ith regard to the Fifth and Eighth Amendments), and 26N (with regard to the E ig h th Amendment); and C la im 57 (to the extent it relies on the Eighth and Fourteenth A m e n d m e n ts ). Disputed Exhaustion Status (in whole, or in part) T h e parties did not agree about the exhaustion status of the following c la im s : Claim 11. The parties agree this claim is unexhausted to the extent it relies o n the Eighth Amendment, but disagree about the status of the remainder of the c la im . The Warden alleges it is unexhausted to the extent it relies on any federal r ig h t not asserted in state court, such as the Sixth Amendment (right to an im p a r tia l jury or to confront witnesses) and the Eighth Amendment (right to be fr e e from cruel and unusual punishment). Catlin asserts the Sixth Amendment le g a l grounds for this claim are exhausted in the state petition at page 16, where it cites United States v. Wade, 388 U.S. 218 (1967). Catlin states Wade recognizes th a t the deprivation of the right to counsel necessarily includes the right to trial b y an impartial jury and to confront witnesses, id. at 226-227, and contends the c ita tio n to Wade alerted the California Supreme Court to the federal legal grounds fo r this claim. Catlin is correct; Wade states the right to counsel includes the guarantee th a t the accused need not stand alone against the State at any stage of the p r o se c u tio n , and also guarantees the rights in the Sixth Amendment - to a speedy a n d public trial by an impartial jury, to be informed of the nature and cause of th e accusation, and to confront witnesses against him and compel witnesses in h is favor. Wade, 388 U.S. at 226-227. Citation to a federal case involving the legal s ta n d a r d for a federal constitutional violation is sufficient to satisfy the fair O R e E xh stn C a t 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 p r e s e n ta tio n requirement. Claim 11 is unexhausted to the extent it relies on the E ig h th Amendment. C la im 18. The parties agree subclaims B through H and J are unexhausted to the extent they rely on the Sixth Amendment right to confront witnesses, but d is a g r e e about the status of the remainder of the claim. The Warden alleges that s u b cla im I is unexhausted. Catlin asserts subclaim I was exhausted in the A p p e lla n t 's Opening Brief at 128-130. S u b c la im A is almost an identical copy of Section III, Argument K, part 2, p r e s e n te d in Catlin's Opening Brief on appeal, starting at page 113. This claim w a s fairly presented to the state court, except to the extent that it relies on the S ix th Amendment right to confront witnesses, which was not argued to the state c o u r t. S u b c la im I is almost an identical copy of Section III, Argument K, part 10, p r e s e n te d in Catlin's Opening Brief on appeal, starting at page 128. This claim w a s fairly presented to the state court, except to the extent that it relies on the S ix th Amendment right to confront witnesses, which was not argued to the state c o u r t. A ll subclaims of Claim 18 are unexhausted to the extent they rely on the S ix th Amendment right to confront witnesses. The remaining legal grounds are e x h a u s te d . C la im 19. The parties do not state their position on this claim, but it is a lm o s t an identical copy of Section III, Argument L, presented in Catlin's O p e n in g Brief on appeal, starting at page 131. Claim 19 was fairly presented to th e state court and is exhausted. C la im 22. The parties do not agree on the exhaustion status of this claim. The Warden alleges that, as it relates to the letter from Bethesda Naval Hospital, O R e E xh stn C a t 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 th e claim is unexhausted to the extent it is based on the Fifth, Sixth, and Eighth A m e n d m e n ts . Catlin asserts the claim is exhausted in the state petition at page 1 2 2 , where each of these legal grounds were raised while also incorporating the A p p e lla n t 's Opening Brief ("AOB") Section III, Arguments I, O, and P, which in clu d e the letter from Bethesda Naval Hospital (AOB at 173-174). C a tlin 's Argument P, in Section III of his Opening Brief on appeal, contains th e main allegations in this claim, but only alleges a violation of due process. Catlin's state habeas petition presents the same legal grounds as alleged in his fe d e r a l petition, and there incorporates by reference the relevant arguments, in c lu d in g the allegation regarding the letter from Bethesda Naval Hospital, from h is direct appeal brief. The incorporation into his state habeas petition of the a lle g a tio n s from Catlin's Opening Brief on direct appeal, which was still pending w h e n the state habeas petition was filed, was sufficient to fairly present this claim to the state court. Claim 22 is exhausted. C la im 24. The parties do not state their position on subclaims A and E. S u b c la im A is an identical copy of Section VIII, Argument A, presented in C a tlin 's state habeas petition, starting at page 96. Subclaim E is almost an id e n tic a l copy of Section VIII, Argument E, presented in Catlin's state habeas p e titio n , starting at page 105. Subclaims A and E were fairly presented to the s ta t e court. The following portions of subclaims are unexhausted: B (with regard to the Eighth Amendment), C (with regard to the Sixth and Eighth A m e n d m e n ts ), D (with regard to the Sixth Amendment), and F (with regard to th e Sixth and Eighth Amendments). The remaining legal grounds are exhausted. C la im 25. The parties agree this claim is unexhausted to the extent it relies o n the Eighth and Fourteenth Amendments, but do not agree regarding the s ta tu s of the remainder of the claim. The Warden alleges the claim is O R e E xh stn C a t 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 u n e x h a u s te d to the extent it is predicated on grounds not presented in state c o u r t, such as the Fifth Amendment. Catlin asserts the Fifth Amendment legal g r o u n d supporting this claim is exhausted in the Appellant's Opening Brief at p a g e 203. W ith the exception of paragraphs 12 through 14 1 , Claim 25 is almost an id e n tic a l copy of Section V presented in Catlin's Opening Brief on appeal, s ta rtin g at page 198. Paragraph 12 asserts the conflict of interest claim presented h e r e deprived Catlin on his right to a fair trial, due process, the effective a s s is ta n c e of counsel, conflict-free representation, to confront witnesses, to a r e lia b le trial and sentence, and to be free from cruel and unusual punishment. E x c e p t to the extent that Claim 25 relies on the Eighth and Fourteenth A m e n d m e n ts , the facts and remaining legal grounds were fairly presented to the s ta te court. Claim 26. The parties do not agree regarding the exhaustion status of most o f this claim. The portions of this claim that the parties do agree on are as fo llo w s : subclaim Q is exhausted and subclaim P is unexhausted. The parties also a g ree that the following legal grounds are unexhausted: subclaims B and E (Fifth A m e n d m en t); subclaims J and K (Fifth and Eighth Amendments); and subclaim N (E ig h th Amendment). The parties state they do not agree regarding the e x h a u stio n status for the remainder of this claim. The parties do not present their p o sitio n s regarding the exhaustion status of subclaims A, C, E (except regarding th e Fifth Amendment), G, J and K (except regarding the Fifth and Eighth A m e n d m e n ts ), O and R. Paragraphs 13 and 14 incorporate the allegations in the remainder of the p e titio n and assert the alleged constitutional violation requires reversal without m e e tin g the prejudice standard of Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993), b u t contends there is prejudice sufficient to satisfy Brecht. O R e E xh stn C a t 1 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 S u b c la im A is almost an identical copy of Claim XIIA, presented in Catlin's s ta te petition at pages 183-196 ( 380- 409), except for paragraphs 30 and 31 (w h ic h incorporate the allegations in the remainder of the petition and assert the a lle g e d constitutional violation requires reversal without meeting the prejudice sta n d a rd of Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993), but contends there is prejudice sufficient to satisfy Brecht). Subclaim A was fairly presented to the s ta te and is exhausted. T h e Warden alleges subclaim B is unexhausted regarding the Eighth and F o u r te e n th Amendments. Catlin asserts that subclaim B is exhausted as to the E ig h th and Fourteenth Amendments legal grounds in the state petition at page 2 0 0 . Catlin is correct; subclaim B is exhausted as to the Sixth, Eighth and F o u r te e n th Amendments. The parties agree this claim is unexhausted regarding th e Fifth Amendment. T h e facts and legal grounds supporting subclaim C were presented in C a tlin 's state petition in Claim XII-E(1), at pages 220-226, except for paragraphs 1 4 and 15 (which incorporate the allegations in the remainder of the petition and a s s e r t the alleged constitutional violation requires reversal without meeting the p re ju d ice standard of Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993), but c o n te n d s there is prejudice sufficient to satisfy Brecht). Subclaim C was fairly p r e s e n te d to the state and is exhausted. T h e Warden alleges subclaim D is unexhausted regarding the Fifth, Eighth a n d Fourteenth Amendments. Catlin asserts that subclaim D is exhausted as to th e Fifth, Eighth and Fourteenth Amendments in the state petition at pages 2012 0 2 which incorporates the Appellant's Opening Brief Section III, Arguments I, M , O and P, which raise these legal grounds. Subclaim D is almost an identical c o p y of Claim XII-C, presented in Catlin's state petition at pages 201-207 ( O R e E xh stn C a t 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 422, 424-433), except for paragraphs 12 and 13 (which incorporate the allegations in the remainder of the petition and assert the alleged constitutional violation re q u ire s reversal without meeting the prejudice standard of Brecht v. Abrahamson, 5 0 7 U.S. 619, 638 n.9 (1993), but contends there is prejudice sufficient to satisfy B r e c h t). Although Catlin's state petition only presents the legal ground of In e ffe c tiv e Assistance of Counsel under the Sixth Amendment, the incorporation o f the arguments from his Opening Brief on direct appeal (see 422), which a s s e r ts the legal grounds under the Fifth, Eighth and Fourteenth Amendments a n d relies on the same underlying facts, and which was still pending at the time th e state habeas petition was filed, was sufficient to fairly present this claim to the s ta te court. Subclaim D is exhausted. S u b c la im E is almost an identical copy of Claim XII-D, presented in Catlin's s ta te petition at pages 208-218 ( 434- 457), except for paragraphs 25 and 26 (w h ic h incorporate the allegations in the remainder of the petition and assert the a lle g e d constitutional violation requires reversal without meeting the prejudice sta n d a rd of Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993), but contends there is prejudice sufficient to satisfy Brecht). The parties agree this claim is u n e x h a u s te d regarding the Fifth Amendment. The remainder of subclaim E was fa ir ly presented to the state and is exhausted. T h e Warden alleges subclaim F is unexhausted regarding the Eighth and F o u r te e n th Amendments. Catlin asserts that subclaim F is exhausted as to the E ig h th and Fourteenth Amendments in the Appellant's Opening Brief at page 2 0 5 . Subclaim F was presented to the state court as part of the ineffective a s s is ta n c e of counsel claim in Argument VI in Catlin's Opening Brief on direct a p p e a l. The introduction to that argument asserted that ineffective assistance of c o u n s e l claims in capital cases must also be measured against the heightened O R e E xh stn C a t 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 r e lia b ility standards under the Eighth Amendment, and the Fifth and Fourteenth A m e n d m e n ts right to liberty. Subclaim F was fairly presented to the state and is e x h a u s te d . S u b c la im G is almost an identical copy of Claim XII-E(2), presented in C a tlin 's state petition at pages 227-229 ( 475- 478), except for paragraphs 5 and 6 (which incorporate the allegations in the remainder of the petition and assert th e alleged constitutional violation requires reversal without meeting the p re ju d ice standard of Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993), but c o n te n d s there is prejudice sufficient to satisfy Brecht). Subclaim G was fairly p r e s e n te d to the state and is exhausted. T h e Warden alleges subclaim H is unexhausted regarding the Fifth and E ig h th Amendments. Catlin asserts that subclaim H is exhausted as to the Fifth a n d Eighth Amendments in the Appellant's Opening Brief at page 205. Subclaim H was presented to the state court as part of the ineffective assistance of counsel c la im in Argument VI in Catlin's Opening Brief on direct appeal. The in tr o d u c tio n to that argument asserted that ineffective assistance of counsel c la im s in capital cases must also be measured against the heightened reliability s ta n d a r d s under the Eighth Amendment, and the Fifth and Fourteenth A m e n d m e n ts right to liberty. Subclaim H was fairly presented to the state and is e x h a u s te d . The Warden alleges subclaim I is unexhausted regarding the Fifth and E ig h th Amendments. Catlin asserts that subclaim I is exhausted as to the Fifth a n d Eighth Amendments in the state petition at page 244 ("violates petitioner's r ig h ts to due process of law and to a reliable determination of guilt," citing Beck v. A la b a m a (Fifth and Eighth Amendments) and Johnson v. Mississippi (Eighth A m e n d m e n t). The claim in Catlin's state petition presents the identical factual O R e E xh stn C a t 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 a lle g a tio n and the same legal grounds as the claim presented here. The citations to Beck and Johnson are sufficient to exhaust the legal grounds under the Fifth and E ig h th Amendments. Subclaim I was fairly presented to the state and is e x h a u s te d . S u b c la im J is almost an identical copy of Clm XII-E(6), presented in Catlin's s ta te petition at pages 244-247 ( 504-511), except for paragraphs 7 and 8 (which in c o rp o r a te the allegations in the remainder of the petition and assert the alleged c o n s titu tio n a l violation requires reversal without meeting the prejudice standard o f Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993), but contends there is p r e ju d ic e sufficient to satisfy Brecht). The parties agree this claim is unexhausted r e g a r d in g the Fifth and Eighth Amendments. The remainder of subclaim J was fa ir ly presented to the state and is exhausted. S u b c la im K is an identical copy of Claim XII-E(7), presented in Catlin's s ta te petition at pages 251-253 ( 518-523), except for paragraphs 7 and 8 (which in c o rp o r a te the allegations in the remainder of the petition and assert the alleged c o n s titu tio n a l violation requires reversal without meeting the prejudice standard o f Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993), but contends there is p r e ju d ic e sufficient to satisfy Brecht). The parties agree this claim is unexhausted re g a rd in g the Fifth and Eighth Amendments. The remainder of subclaim K was fa ir ly presented to the state and is exhausted. T h e Warden alleges subclaim L is unexhausted regarding the Fifth and E ig h th Amendments. Catlin asserts that subclaim L is exhausted as to the Fifth a n d Eighth Amendments in the state petition at page 256 (citing Beck v. Alabama a n d Johnson v. Mississippi). The claim in Catlin's state petition presents the id e n tic a l factual allegation and the same legal grounds as the claim presented h e r e . The citations to Beck and Johnson are sufficient to exhaust the legal grounds O R e E xh stn C a t 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 u n d e r the Fifth and Eighth Amendments. Subclaim L was fairly presented to the s ta te and is exhausted. T h e Warden alleges subclaim M is unexhausted regarding the Fifth, Eighth a n d Fourteenth Amendments. Catlin asserts that subclaim M is exhausted as to th e Fifth, Eighth and Fourteenth Amendments in the state petition at page 258, w h ic h refers back to the Appellant's Opening Brief Section III, Arguments B-D. Catlin's state claims presented the legal grounds asserting the denial of a fair tr ia l, due process, equal protection, and ineffective assistance of counsel. The s ta te claims did not assert the alleged error resulted in an unreliable verdict or s e n te n c e , or violated his right to an independent sentence, so subclaim M is u n e x h a u s te d to the extent it relies on those grounds. The remaining legal g ro u n d s of subclaim M are exhausted. T h e Warden alleges subclaim N is unexhausted regarding the Fourteenth A m e n d m e n t. Catlin asserts that subclaim N is exhausted as to the Fourteenth A m e n d m e n t in the state petition at page 260. The claim in Catlin's state petition p r e s e n ts the identical factual allegation and the same legal grounds as the claim p r e s e n te d here. Subclaim N is exhausted regarding the Fifth, Sixth and F o u r te e n th Amendments. The parties agree this claim is unexhausted regarding th e Eighth Amendment. S u b c la im O is almost an identical copy of Claim XII-H, presented in C a tlin 's state petition at pages 264-272 ( 511-555 and 557-568), except for p a r a g ra p h s 17 and 18 (which incorporate the allegations in the remainder of the p e titio n and assert the alleged constitutional violation requires reversal without m e e tin g the prejudice standard of Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1 9 9 3 ), but contends there is prejudice sufficient to satisfy Brecht). Subclaim O w a s fairly presented to the state and is exhausted. O R e E xh stn C a t 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 T h e parties agree subclaim P is unexhausted. T h e parties agree subclaim Q is exhausted. S u b c la im R contains the same factual and legal bases as the cumulative e r r o r claim in Claim XII-I, presented in Catlin's state habeas petition at pages 2722 7 3 . Subclaim R is exhausted. C la im 43. The parties do not agree regarding the status of this claim, e x c e p t as noted above.2 The Warden alleges that subclaim A is unexhausted to th e extent that it is based on the Fourteenth Amendment. Catlin asserts this legal g ro u n d is exhausted in the Appellant's Opening Brief at page 241, with the c ita tio n to McDowell v. Calderon, 130 F.3d 833 (9th Cir. 1997) which relies on the E ig h th and Fourteenth Amendments. C a tlin is correct; McDowell holds the Eighth and Fourteenth Amendments r e q u ir e the jury to consider evidence put forward by a defendant in mitigation of h is culpable behavior. Id. at 837 (overruled in part on other grounds by Weeks v. A n g elo n e , 528 U.S. 225). Citation to a federal case involving the legal standard for a federal constitutional violation is sufficient to satisfy the fair presentation r e q u ir e m e n t. The disputed portions of Claim 43 are exhausted. C la im 47. The parties do not agree regarding the status of this claim, e x c e p t as noted above.3 The Warden alleges that subclaim A is unexhausted to th e extent it relies on the Eighth Amendment because the claim has been fu n d a m e n ta lly altered by focusing on how prosecutors argue the circumstances As stated above, the parties agree subclaims A and B of Claim 43 are u n e xh a u s te d to the extent they are based on the Fifth and Sixth Amendments, and a g re e subclaim A is exhausted to the extent it relies on the Eighth Amendment and su b cla im B is exhausted to the extent it relies on the Eighth and Fourteenth A m e n d m e n t s. 3 As stated above, the parties agree Claim 47 is unexhausted as follows: su b claim A (to the extent it relies on the Fifth, Sixth and Fourteenth Amendments); s u b c la im B; and subclaim C (to the extent it relies on International Law and relates to unanimous jury findings of aggravating factors). O R e E xh stn C a t 2 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 o f the crime factor. Catlin asserts this legal claim has been supplemented with fa c ts that do not render the legal claim unexhausted. C a tlin argued on direct appeal that California's death penalty statute was a r b itr a r y in that it allowed a prosecutor to seek death against some offenders w h ile similar offenders in different counties were not singled out for the ultimate p e n a lty . Appellant's Opening Brief, Section VII, Argument E(8), at pages 253 2 5 4 . Catlin's listing in his federal petition of specific examples of this alleged a b itr a r in e s s does not make the claim presented here different from the claim p r e s e n te d in state court. The disputed portion of Claim 47 is exhausted. C la im 53. The parties do not agree regarding the status of this claim. The W a rd e n alleges it is unexhausted because the claim is so fundamentally altered fr o m the way it was presented in state court as to constitute a new claim. Catlin a s s e r ts this legal claim has been supplemented with facts that do not render the le g a l claim unexhausted. C a tlin 's argument of abitrariness in his federal petition including specific e x a m p le s of differences in capital sentences between counties does not make the c la im presented here different from the claim presented in state court. See A p p e lla n t's Opening Brief, Section VII, Argument E(8), at pages 253 - 254. The a rg u m e n t that California's death penalty scheme violates the Equal Protection C la u s e was not presented to the state court. Claim 53 is exhausted, except to the e x te n t it relies on the legal ground of Equal Protection. C la im 58. The parties do not agree regarding the status of this claim, e x c e p t as noted above.4 The Warden alleges the subclaim entitled "Prosecutorial The parties agree Claim 58 is unexhausted as follows: subclaims on pages 5 3 3 -5 4 4 , starting with "Multiple Counts of Special Circumstances and Aggravation C la im s " and ending with "Failure to Inform the Jury that it Need Not be Unanimous a s to Mitigating Circumstances;" subclaim entitled "Failure to Require Unanimity a s to Aggravating Circumstance;" and subclaims on pages 546-553, starting with O R e E xh stn C a t 4 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 D is c r e tio n " is unexhausted. Catlin asserts this legal claim has been supplem e n te d with facts that do not render the legal claim unexhausted. See A p p e lla n t 's Opening Brief at pages 253-254. A s noted in Claims 47 and 53 above, Catlin's inclusion in his federal p e titio n of specific examples of differences in capital charging and sentences b e tw e e n counties does not make the claim presented here different from the c la im presented in state court. See Appellant's Opening Brief, Section VII, A r g u m e n t E(8), at pages 253 - 254. The argument that California's death penalty s c h e m e violates the Equal Protection Clause was not presented to the state court. The subclaim of Claim 58 entitled "Prosecutorial Discretion Issues" is exhausted, e x ce p t to the extent it relies on the legal ground of Equal Protection. C o n c lu s io n T h e following claims are unexhausted in whole, or in part as indicated: C la im 3; Claim 8 to the extent it asserts violations of international law, Treaties, Norms, a n d Customs; C la im 10 to the extent it is based on the Eighth Amendment; C la im 11 to the extent it relies on the Eighth Amendment; C la im 12 to the extent it relies on the Eighth Amendment; Claim 14 to the extent it is predicated on the Fifth Amendment due process g ro u n d ; C la im 16 to the extent it is based on the Eighth Amendment right to a reliable g u ilt and penalty phase verdict and judgment; C la im 17 to the extent it is based on the Fifth and Fourteenth Amendment due " B u r d e n of Proof and Persuasion Claims" and ending with "Cumulative C o n s titu tio n a l Error." The parties agree the subclaim at pages 531- 533, entitled " D ea th Eligibility," is exhausted to the extent it relies on the Eighth Amendment. O R e E xh stn C a t 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 p r o c e s s clause and the Eighth Amendment; Claim 18, all subclaims to the extent they rely on the Sixth Amendment right to c o n f r o n t witnesses; C la im 20 to the extent it is predicated on non-due process grounds, like the Fifth fa ir trial, Sixth - confront evidence, and Eighth Amendments - reliable conviction a n d sentence; C la im 23 to the extent it relies on the Eight Amendment; Claim 24B with regard to the Eighth Amendment, 24C with regard to the Sixth a n d Eighth Amendments, 24D with regard to the Sixth Amendment, and 24F w ith regard to the Sixth and Eighth Amendments; C la im 25 to the extent it relies on the Eighth and Fourteenth Amendments; C la im 26B with regard to the Fifth Amendment, 26E with regard to the Fifth A m e n d m e n t, 26J with regard to the Fifth and Eighth Amendments, 26K with r e g a r d to the Fifth and Eighth Amendments, 26 M to the extent it asserts an u n re lia b le verdict or sentence or violation of the right to an independent s e n te n c e , 26N with regard to the Eighth Amendment, and 26P; Claim 32 as it relates to the cumulative effect of all guilt phase claims other than th o s e raised in the state Appellant's Opening Brief; Claim 33; Claim 35D and E; C la im 38 to the extent it is based on grounds not alleged in the state petition ju r o r misconduct and trial court errors; Claim 39 to the extent it is based on facts not asserted in state court; Claim 43A and 43B to the extent it is based on the Fifth and Sixth Amendments; C la im 45; Claim 46; O R e E xh stn C a t 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 C la im 47A to the extent it relies on the Fifth, Sixth and Fourteenth Amendments, 4 7 B , and 47C to the extent it relies on International Law and relates to unanimous ju r y findings of aggravating factors; Claim 48 with regard to the Fifth and Fourteenth Amendments; Claim 49 with regard to the Sixth Amendment and to the extent it relies on A p p ren d i; Claim 51; Claim 52; Claim 53 to the extent it relies on the legal ground of Equal Protection; C la im 54; Claim 55; Claim 56; Claim 57 to the extent it relies on the Eighth and Fourteenth Amendments; Claim 58 subclaims on pages 533-544 - starting with "Multiple Counts of Special C ir c u m s ta n c e s and Aggravation Claims" and ending with "Failure to Inform the Ju r y that it Need Not be Unanimous as to Mitigating Circumstances," subclaim e n title d "Failure to Require Unanimity as to Aggravating Circumstance," and s u b c la im s on pages 546-553 - starting with "Burden of Proof and Persuasion C la im s " and ending with "Cumulative Constitutional Error," subclaim entitled " D e a th Eligibility" to the extent it relies on the Fifth, Sixth and Fourteenth A m e n d m e n ts ; and subclaim entitled "Prosecutorial Discretion Issues" to the e x te n t it relies on the legal ground of Equal Protection. C la im 59; Claim 60; Claim 61; Claim 62; O R e E xh stn C a t 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 C la im 63; Claim 64; Claim 65; Claim 66; Claim 67 as it relates to lethal gas and International Law; Claim 67(II); and C la im 68 to the extent it is based on unexhausted claims. C a t lin is required to make a showing of justification under Rhines v. Weber, 5 4 4 U.S. 269, 277 (2005), for stay and abeyance of his federal proceedings in order to exhaust state remedies. Catlin's showing shall be filed on or before March 18, 2 0 0 9 . The Warden may file an opposition to stay and abeyance on or before April 1 7 , 2009. IT IS SO ORDERED. Dated: b64h1h February 17, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE O R e E xh stn C a t 19

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