Wilson v. Hedgpeth

Filing 31

ORDER DENYING RESPONDENT'S MOTION TO DISMISS; TO SHOW CAUSE by Judge William Alsup denying 12 Motion to Dismiss (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 12/12/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 11-5207 WHA (PR)

KIMIKO KIMIO WILSON,
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ORDER DENYING RESPONDENT’S
MOTION TO DISMISS; TO SHOW
CAUSE

v.
For the Northern District of California

United States District Court

Petitioner,
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ANTHONY HEDGPETH,
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Respondent.
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(Docket No. 12)
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INTRODUCTION
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This is a habeas case filed pro se by a state prisoner. Respondent was ordered to show
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cause why the petition should not be granted based on the thirteen cognizable claims in the
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petition. Respondent filed a motion to dismiss on the grounds that seven of the claims have not
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been not exhausted. Petitioner has filed an opposition and respondent has filed a reply brief.
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Petitioner was granted leave to file a supplemental opposition, and respondent filed a
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supplemental reply brief. For the reasons set out below, the motion to dismiss is DENIED and
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respondent is ordered to file an answer showing cause why the petition should not be granted.
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STATEMENT
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In 2007, a jury found guilty of two counts of murder with special circumstances and one
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count of premeditated attempted murder. The trial court sentenced him to concurrent terms of
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life without the possibility of parole in state prison. On appeal, the California Court of Appeal
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affirmed the judgment, and the California Supreme Court denied a petition for review.
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Thereafter, petitioner filed unsuccessful habeas petitions in the state courts, including one

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petition in the California Supreme Court. The instant federal habeas petition followed

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ANALYSIS

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The parties agree that petitioner raised his first six claims in his petition for direct

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review to the California Supreme Court, and that they have all been exhausted. The remaining

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seven claims were raised in a petition for a writ of habeas corpus to the California Supreme

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Court. Respondent contends that these claims were not exhausted, and petitioner disagrees.

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An application for a federal writ of habeas corpus filed by a prisoner who is in state

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custody pursuant to a judgment of a state court may not be granted unless the prisoner has first

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exhausted state judicial remedies, either by way of a direct appeal or in collateral proceedings,
by presenting the highest state court available with a fair opportunity to rule on the merits of

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For the Northern District of California

United States District Court

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each and every issue he or she seeks to raise in federal court. See 28 U.S.C. 2254(b),(c);

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Granberry v. Greer, 481 U.S. 129, 133-34 (1987). The United States Supreme Court held in

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Rose v. Lundy, 455 U.S. 509 (1982), that federal courts must dismiss a habeas petition which

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contains one or more unexhausted claims. Id. at 522 (1982).

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Respondent argues that the seven claims raised presented to the California Supreme

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Court in a habeas petition were not exhausted because they were denied with a citation to In re

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Swain, 34 Cal. 2d 300, 304 (1949). In re Swain articulates California’s procedural requirements

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that a California habeas petitioner allege with particularity the facts supporting his claims and

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explain and justify any delay in the presentation of the claims. See In re Swain, 34 Cal. 2d 300,

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304 (1949). The Supreme Court’s denial was summary and unexplained, and it was also

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unaccompanied by citation to any other case. Hence it is unclear whether the citation to Swain

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stood for its first proposition, namely a lack of sufficient particularity, or its second proposition,

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namely an unjustified delay. Compare Pombrio v. Hense, 631 F. Supp. 2d 1247, 1252 (C.D.

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Cal. 2009) (holding that when accompanied by citation to People v. Duvall, 9 Cal. 4th 464, 474

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(1995) (requiring habeas claims to be stated with particularity), citation to Swain indicates that

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habeas petition being dismissed for lack of particularity). Respondent contends, without any

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authority or explanation, that the citation to Swain stood for the first proposition – that the

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petition did not describe the claims with sufficient particularity. In any event, even if that were
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the basis for the Swain citation, the claims are still exhausted.
Where Swain is cited for the proposition that the petitioner did not present his claims

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with sufficient particularity, the Ninth Circuit treats the Swain citation as standing for a denial

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on procedural grounds which can be cured in a renewed state petition. See Kim v. Villalobos,

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799 F.2d 1317, 1319 (9th Cir. 1986). State judicial remedies therefore are not exhausted. See

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id.; accord McQuown v. McCartney, 795 F.2d 807, 808 n.1, 809 (9th Cir. 1986); Harris v.

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Superior Court, 500 F.2d 1124, 1128 (9th Cir. 1974). However, if the petitioner maintains that

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the state procedural denial based on Swain was erroneous because he did allege his claims with

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particularity and that they are incapable of being alleged with any greater particularity, a federal
court cannot per se find the claims unexhausted, and must instead independently examine the

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For the Northern District of California

United States District Court

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petition presented to the state court to determine whether the claims were fairly presented. See

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Kim, 799 F.2d at 1319-20.

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Here, petitioner contends in his opposition and supplemental opposition that the claims

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were presented to the California Supreme Court with sufficient particularity to satisfy the

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federal “fair presentation” requirement. To “fairly present” a claim for purposes of exhaustion,

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a petitioner must provide the state court only with the operative facts “necessary to give

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application to the constitutional principle upon which [the petitioner] relies,” Davis v. Silva,

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511 F.3d 1005, 1009 (9th Cir. 2008) (internal quotations and citations omitted), and cite the

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pertinent constitutional right, Duncan v. Henry, 513 U.S. 364, 365-66 (1995). A review of the

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petition to the California Supreme Court shows that it did so. Each of the seven claim identifies

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the specific constitutional right at issue and contains a detailed account of how the right was

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allegedly violated, including specific citations to the record. Indeed, the petition includes 44

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pages of briefing on the seven claims. The claims are, moreover, identical to claims seven

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through thirteen raised here. Under these circumstances, the seven claims were “fairly

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presented” to the California Supreme Court.

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Respondent argues first that the Ninth Circuit’s decision in Kim, requiring a federal

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court to examine whether the petition to the California Supreme Court had sufficient

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particularity, was wrongly decided. Recognizing the futility of such an argument because Kim
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seven claims to the California Supreme Court with sufficient particularity. Respondent’s

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arguments in this regard go to the merits of the claims, however, not to whether they were fairly

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presented. For example, respondent argues that in some instances petitioner does not

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adequately explain how the alleged facts give rise to a constitutional violation, in other

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instances the alleged facts do not amount to a constitutional violation, and in other instances

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petitioner’s explanation for how his rights were violated is inadequate. While these arguments

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may ultimately prove true, that would only show that the claims lack merit, not they lacked

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sufficient particularity for the state high court to a fair opportunity to rule on them. For the

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reasons discussed above, the petition adequately afforded the state court the opportunity to

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For the Northern District of California

is binding on the instant matter, however, respondent also disputes whether petitioner stated his

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United States District Court

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understand the legal and factual basis for petitioner’s claims. As such, the state court had a fair

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opportunity to rule on his claims, and they were adequately exhausted for federal habeas

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review. Accordingly, the motion to dismiss will be denied and respondent will be ordered to

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show cause why the petition should not be granted.

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CONCLUSION

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In light of the foregoing, respondent's motion to dismiss (document number 12) is

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DENIED. Respondent shall file with the court and serve on petitioner, within ninety-one days of

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the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules

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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be

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granted based on the claims found cognizable herein. Respondent shall file with the answer and

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serve on petitioner a copy of all portions of the state trial record that have been transcribed

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previously and that are relevant to a determination of the issues presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
court and serving it on respondent within twenty-eight days of the date the answer is filed.
IT IS SO ORDERED.

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Dated: December 10 , 2012.
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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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