Hunwardsen v. Ducart

Filing 25

ORDER GRANTING Respondent's 17 Motion to Dismiss, DISMISSING Petition for Writ of Habeas Corpus without prejudice, DIRECTING Clerk of Court to Close Case and DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY,signed by Magistrate Judge Erica P. Grosjean on 03/8/17.CASE CLOSED (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JASON GRANT HUNWARDSEN,

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ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS, DISMISSING
PETITION FOR WRIT OF HABEAS
CORPUS WITHOUT PREJUDICE,
DIRECTING CLERK OF COURT TO
CLOSE CASE, AND DECLINING TO
ISSUE CERTIFICATE OF
APPEALABILITY

Petitioner,

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Case No. 1:16-cv-00935-EPG-HC

v.
CLARK DUCART,
Respondent.

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(ECF No. 17)
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Petitioner Jason Grant Hunwardsen is a state prisoner proceeding pro se with a petition

19 for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the
20 jurisdiction of the United States Magistrate Judge. (ECF Nos. 11, 14).
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As the claims raised in the instant petition either are unexhausted or fail to state a

22 cognizable federal claim, the Court finds granting Respondent’s motion to dismiss and
23 dismissing the petition without prejudice is warranted.
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I.

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BACKGROUND

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In 2013, Petitioner was convicted by a jury in the Merced County Superior Court of

27 inflicting corporal injury upon a cohabitant and making criminal threats. The jury also found true
28 enhancements for infliction of great bodily injury and use of a deadly weapon. Petitioner
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1 admitted the prior conviction and prior prison allegations, and was sentenced to an imprisonment
2 term of twenty-six years and four months. People v. Hunwardsen, No. F068675, 2015 WL
3 5943471, at *1, 4 (Cal. Ct. App. Oct. 13, 2015). On October 13, 2015, the California Court of
4 Appeal, Fifth Appellate District affirmed the judgment. Id. at *14. The California Court of
5 Appeal denied the petition for rehearing, and the California Supreme Court denied the petition
6 for review. (LDs1 6, 8).
On June 21, 2016, Petitioner filed the instant federal petition for writ of habeas corpus in

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8 the United States District Court for the Northern District of California. (ECF No. 1). On June 27,
9 2016, the petition was transferred to this Court. (ECF No. 4). On October 3, 2016, Respondent
10 filed a motion to dismiss, arguing that five of Petitioner’s six claims were unexhausted and the
11 sole exhausted claim was not cognizable in federal habeas. (ECF No. 17). In his opposition,
12 Petitioner appears to acknowledge that five of his six claims are unexhausted and requests the
13 Court to hold the petition in abeyance pending resolution of the unexhausted claims in state
14 court. (ECF No. 23).
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II.

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DISCUSSION

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A. Exhaustion

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A petitioner in state custody who is proceeding with a petition for writ of habeas corpus

19 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based
20 on comity to the state court and gives the state court the initial opportunity to correct the state’s
21 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v.
22 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by
23 providing the highest state court with a full and fair opportunity to consider each claim before
24 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v.
25 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). To provide the
26 highest state court the necessary opportunity, the petitioner must “fairly present” the claim with
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“LD” refers to the documents lodged by Respondent on October 4, 2016. (ECF No. 18).

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1 “reference to a specific federal constitutional guarantee, as well as a statement of the facts that
2 entitle the petitioner to relief.” Duncan, 513 U.S. at 365; Gray v. Netherland, 518 U.S. 152, 162–
3 63 (1996). See also Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008).
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In the instant petition, Petitioner raises the following six claims for relief: (1) the trial

5 court’s erroneous denial of Petitioner’s request for mistrial after the victim testified about his
6 prior incarceration and parole; (2) the erroneous admission of the victim’s hospital records; (3)
7 the erroneous admission of Petitioner’s prior uncharged violent acts against the victim under
8 California Evidence Code section 1109; (4) ineffective assistance of trial counsel for not moving
9 to redact the tape of the victim’s police interview; (5) ineffective assistance of trial counsel for
10 not moving to exclude one of Petitioner’s prior acts of domestic violence, which had been
11 dismissed for insufficient evidence; and (6) the trial court and the parties’ error in stipulating that
12 the court reporter need not transcribe the court’s oral instructions to the jury.
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Claims 1, 2, 4, 5, and 6 are unexhausted. Although all six claims were raised on direct

14 appeal to the California Court of Appeal, the only claim presented to the California Supreme
15 Court in the petition for review was claim 3—whether California Evidence Code section 1109
16 creates a legislative presumption of admissibility of prior uncharged acts of domestic violence.
17 (LDs 1, 7). Petitioner appears to acknowledge that he raises five claims that are unexhausted, and
18 therefore requests the Court to hold the petition in abeyance pending resolution of the
19 unexhausted claims in state court. (ECF No. 23).
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Under Rhines v. Weber, “stay and abeyance” is available only in limited circumstances,

21 and only when: (1) there is “good cause” for the failure to exhaust; (2) the unexhausted claims
22 are not “plainly meritless”; and (3) the petitioner did not intentionally engage in dilatory
23 litigation tactics. 544 U.S. 269, 277–78 (2005). Petitioner asserts that he was not aware that
24 appellate counsel failed to exhaust five of his claims. (Id.). The Ninth Circuit has held that a
25 petitioner’s “‘impression’ that counsel had exhausted an unexhausted claim does not constitute
26 ‘good cause’ for failure to exhaust that claim.” Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th
27 Cir. 2008). Accordingly, the Court finds that Petitioner has failed to demonstrate good cause for
28 his failure to exhaust under Rhines and is not entitled to a stay.
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Rhines directs that “if a petitioner presents a district court with a mixed petition and the

2 court determines that stay and abeyance is inappropriate, the court should allow the petitioner to
3 delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire
4 petition would unreasonably impair the petitioner’s right to obtain federal relief.” Rhines, 544
5 U.S. at 278. However, as discussed in section II(B), infra, the sole exhausted claim only raises an
6 error of state law, which is not cognizable in federal habeas corpus. Therefore, dismissal of the
7 entire petition is appropriate.
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B. Cognizability of Claim 3 in Federal Habeas

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With respect to claim 3, the sole exhausted claim in the petition, Petitioner alleges that

10 the trial court erroneously admitted evidence of Petitioner’s prior uncharged violent acts against
11 the victim under California Evidence Code section 1109. (ECF No. 1 at 7). Whether such
12 evidence was incorrectly admitted under the California Evidence Code is an issue of state law,
13 and errors of state law do not warrant federal habeas corpus relief. See Estelle v. McGuire, 502
14 U.S. 62, 67–68 (1991) (“We have stated many times that ‘federal habeas corpus relief does not
15 lie for errors of state law.’ Today, we reemphasize that it is not the province of a federal habeas
16 court to reexamine state-court determinations on state-law questions.”) (citations omitted);
17 Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (“We accept a state court’s interpretation
18 of state law, and alleged errors in the application of state law are not cognizable in federal habeas
19 corpus.”) (citations omitted). Accordingly, claim 3 of the petition is not cognizable in federal
20 habeas corpus and should be dismissed.
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C. Certificate of Appealability

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Having found that Petitioner is not entitled to habeas relief, the Court now turns to the

23 question of whether a certificate of appealability should issue. See Rule 11, Rules Governing
24 Section 2254 Cases. A state prisoner seeking a writ of habeas corpus has no absolute entitlement
25 to appeal a district court’s denial of his petition, and an appeal is only allowed in certain
26 circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003).
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The controlling statute in determining whether to issue a certificate of appealability is 28

28 U.S.C. § 2253, which provides:
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(a) In a habeas corpus proceeding or a proceeding under section
2255 before a district judge, the final order shall be subject to
review, on appeal, by the court of appeals for the circuit in which
the proceeding is held.

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(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to another
district or place for commitment or trial a person charged with a
criminal offense against the United States, or to test the validity of
such person’s detention pending removal proceedings.

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(c) (1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of
appeals from–

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(A) the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by
a State court; or

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(B) the final order in a proceeding under section 2255.
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(2) A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the
denial of a constitutional right.

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(3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing
required by paragraph (2).

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If a court denies habeas relief on procedural grounds without reaching the underlying

17 constitutional claims, the court should issue a certificate of appealability “if jurists of reason
18 would find it debatable whether the petition states a valid claim of the denial of a constitutional
19 right and that jurists of reason would find it debatable whether the district court was correct in its
20 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar
21 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist
22 could not conclude either that the district court erred in dismissing the petition or that the
23 petitioner should be allowed to proceed further.” Id.
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In the present case, the Court finds that reasonable jurists would not find the Court’s

25 determination that Petitioner’s federal habeas corpus petition should be dismissed debatable or
26 wrong, or that Petitioner should be allowed to proceed further. Therefore, the Court declines to
27 issue a certificate of appealability.
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III.

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ORDER

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Accordingly, the Court HEREBY ORDERS that:

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1. Respondent’s motion to dismiss (ECF No. 17) is GRANTED;

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2. The petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE;

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3. The Clerk of Court is directed to CLOSE the case; and

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4. The Court DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.
Dated:

March 8, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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