Covarrubias v. Gower

Filing 30

ORDER by Judge Edward M. Chen Denying (1) Motion to Dismiss and (2) Motion to Proceed Jointly With Co-Defendant 22 25 28 29 . (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 5/16/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HERMAN MICHAEL COVARRUBIAS,

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Petitioner,
ORDER DENYING MOTIONS TO
DISMISS AND TO PROCEED JOINTLY
WITH CO-DEFENDANT

v.

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For the Northern District of California

United States District Court

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No. C-13-4611 EMC (pr)

ROBERT GOWER, Warden,

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Respondent.
___________________________________/

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I.

INTRODUCTION

Petitioner filed this action pursuant to 28 U.S.C. § 2254 to challenge his 2008 conviction.

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The matter is now before the Court for consideration of Respondent’s motion to dismiss for failure

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to exhaust state judicial remedies and Petitioner’s response thereto. The Court also will address

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some miscellaneous motions.

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II.

BACKGROUND

Petitioner was convicted in Santa Clara County Superior Court of nineteen counts of grand

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theft and three counts of forgery, and sentence enhancement allegations were found true. On

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October 10, 2008, Petitioner was sentenced to a term of nineteen years and eight months in state

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prison. He unsuccessfully appealed his conviction. Petitioner also filed several petitions for writ of

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habeas corpus in state courts that were unsuccessful.

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Petitioner then filed this action. His federal habeas petition asserted twenty claims. The

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Court determined that two of the claims were not cognizable, and issued an order to show cause why

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the petition should not be granted on the rest of the claims. See Docket # 16.

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Respondent now moves to dismiss the federal petition on the ground that state court

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remedies have not been exhausted for three of the claims. Petitioner responds to the motion to

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dismiss with a confusing argument that “he has proven . . . that he has exhausted all his remedies in

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the state level” and “is conceding/dropping the 3 claims /issues brought up by the Respondent.”

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Docket # 26 at 3. Petitioner requests to go forward with his other claims.

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III.
A.

DISCUSSION

Respondent’s Motion To Dismiss
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings

either the fact or length of their confinement are required first to exhaust state judicial remedies,
either on direct appeal or through collateral proceedings, by presenting the highest state court

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For the Northern District of California

United States District Court

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available with a fair opportunity to rule on the merits of each and every claim they seek to raise in

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federal court. See 28 U.S.C. § 2254(b), (c). Although the exhaustion requirement is not

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jurisdictional and instead is a matter of comity, see Granberry v. Greer, 481 U.S. 129, 133-34

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(1987), the court generally may not grant relief on an unexhausted claim, see 28 U.S.C. §

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2254(b)(1).

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The exhaustion-of-state-remedies doctrine reflects a policy of federal-state comity to give the

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state “‘the initial “opportunity to pass upon and correct” alleged violations of its prisoners’ federal

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rights.’” Picard v. Connor, 404 U.S. 270, 275 (1971) (citations omitted). Both the legal basis and

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the factual basis must be fairly presented. It is not sufficient to raise only the facts supporting the

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claim; rather, “the constitutional claim . . . inherent in those facts” must be brought to the attention

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of the state court. See id. at 277. The state’s highest court must be alerted to the fact that the

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prisoner is asserting claims under the United States Constitution in order to be given the opportunity

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to correct alleged violations of federal rights. Duncan v. Henry, 513 U.S. 364, 365-66 (1995). With

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regard to the factual basis for the claim, “the petitioner must only provide the state court with the

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operative facts, that is ‘all of the facts necessary to give application to the constitutional principle

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upon which [the petitioner] relies.’” Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (citations

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omitted).

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Respondent moves to dismiss the petition for failure to exhaust state court remedies for

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Claims 17, 19 and 20. Notwithstanding Petitioner’s apparent concession that these three claims are

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unexhausted and should be dismissed, the Court will deny the motion.

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Respondent contends that Claim 17 and Claim 19 of the federal petition “allege ineffective

of appellate counsel in claims 20 and 22 of the state habeas corpus petition.” Docket # 22 at 3

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(emphasis in source). Respondent errs. The habeas petition presented to the California Supreme

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Court mentioned both trial and appellate counsel as being ineffective. See Docket # 22 at 206

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(Claim 20 described as: “IAC - appellate counsel: Petitioner’s trial counsel was ineffective”) and

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208 (Claim 22 described as: “IAC - appellate counsel: Petitioner’s trial counsel was ineffective”).

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For the Northern District of California

assistance of trial counsel for various reasons, but those claims were framed as ineffective assistance

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United States District Court

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The state habeas petition also referred to counsel’s conduct as violating Petitioner’s “right to

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counsel, as guaranteed by Amendment 6 of U.S. Constitution.” Docket # 22 at 206. The Sixth

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Amendment citation suggests a trial counsel problem because the Sixth Amendment is the source of

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the right to trial counsel, whereas the Fourteenth Amendment is the source of the right to appellate

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counsel. See generally Evitts v. Lucey, 469 U.S. 387, 392 (1985). Moreover, the facts alleged in

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Claims 20 and 22 of the state habeas petition plainly refer to conduct associated with a trial attorney

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rather than an appellate attorney, as Claim 20 pertains to the failure to present certain evidence and

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Claim 22 pertains to the failure to call a witness. See Docket # 22 at 206 and 206. Respondent’s

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argument that Claim 17 and Claim 19 of the federal petition are unexhausted because Petitioner did

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not present them as ineffective assistance of trial counsel claims in state court is rejected.

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Respondent next contends that Petitioner failed to exhaust the claim that is Claim 20 in his

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federal petition, i.e., the claim that the prosecutor misled the jury by suggesting that Petitioner was

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“involved and knew about all the loan transactions and that he was in a conspiracy.” Docket # 1 at

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12. Respondent is wrong. The habeas petition filed in the California Supreme Court argued the

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same facts and mentioned a federal due process violation, although Petitioner also cast it as a claim

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for a violation of his Eighth Amendment right to be free from cruel and unusual punishment.

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See Docket # 22 at 207. Compare Docket # 1 at 12 (federal petition arguing that the that the 1003

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loan applications were not signed by him and the “prosecutor used a blanket statement that the

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conspiracy. This is simply not true.”) with Docket # 22 at 207 (state habeas petition arguing that the

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1003 loan applications were not signed by the broker and “prosecutor used a blanket statement that

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the broker was involved and knew about all the loan transactions and that he was in a conspiracy.

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This is simply not true.”) The manner in which Petitioner presented the due process claim may not

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have been likely to result in success in the California Supreme Court (because he coupled it with an

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Eighth Amendment claim), but the exhaustion analysis focuses less on the quality of the presentation

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and more on whether the information is present somewhere in the state court petition, especially

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when the petitions were prepared by a pro se petitioner, as they were here. See Sanders v. Ryder,

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342 F.3d 991, 999 (9th Cir. 2003) (Ninth Circuit precedent “makes clear that, for the purposes of

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For the Northern District of California

broker/petitioner was involved and knew about all the loan transactions and that he was in a

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United States District Court

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exhaustion, pro se petitions are held to a more lenient standard than counseled petitions.”) State

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judicial remedies were exhausted for Claim 20 in the federal petition.

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Respondent’s motion to dismiss the petition for failure to exhaust Claims 17, 19 and 20 is

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DENIED. (Docket # 22.) Petitioner’s opposition requests that the three claims be dismissed, but

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appears to make that request on the incorrect belief that those three claims were unexhausted. Now

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that the Court has determined that state court remedies were exhausted for the three claims, there is

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no reason to believe that Petitioner would continue to desire to dismiss the three claims.

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Accordingly, the Court will not dismiss the three claims mentioned in Respondent’s motion to

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dismiss. If Petitioner actually does want to dismiss these three claims, he should promptly file a

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notice of dismissal of the three claims.

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B.

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Petitioner’s Desire To Proceed Together With His State Court Co-Defendant
Petitioner and his wife, Esperanza Isabel Valverde, were prosecuted together in state court

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for crimes related to their mortgage broker business. Both were convicted and received lengthy

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prison sentences, although the crimes and sentences were not identical. See Docket # 22 at 5-6.

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Petitioner and Ms. Valverde have filed a “joint defense motion for a joinder of plaintiffs for

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prosecution purposes ALSO for Herman M. Covarrubias to be Primary Petitioner.” (Docket # 25, #

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28, and # 29.)

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The Court will not allow Mr. Covarrubias to represent Ms. Valverde, or to be the “primary”

himself.” Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962). In the habeas context, having

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one pro se litigant represent another is particularly undesirable because each petitioner’s liberty is

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individual to that petitioner, and there may be instances where these two petitioners’ interests

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diverge. Mr. Covarrubias must take full responsibility for presenting his own best case, and Ms.

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Valverde must take full responsibility for presenting her own best case. Mr. Covarrubias’ filings do

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not suggest he has any particular legal training. Some of his filings suggest he would be a

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particularly poor choice to guide another litigant in a habeas proceeding. For example, he earlier

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requested a private investigator in a request that reflected a lack of understanding of the extremely

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For the Northern District of California

petitioner. “[A] litigant appearing in propria persona has no authority to represent anyone other than

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United States District Court

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limited nature of discovery in habeas actions; he needlessly conceded to dismissal of three claims in

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response to Respondent’s motion to dismiss; and, in the motion to be the primary petitioner, he

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incorrectly cited to the Federal Rules of Criminal Procedure, which do not apply to actions for writ

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of habeas corpus filed by petitioners challenging state court convictions. Mr. Covarrubias may not

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represent Ms. Valverde or be the “primary” petitioner.

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The Court construes the motion to proceed with a “joint defense” to be a motion to relate the

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cases and DENIES it. Although they were co-defendants in state court, they were represented by

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different attorneys at trial and on appeal. They also present some different claims in their federal

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habeas petitions. They may have different procedural issues in their habeas actions. And the two

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federal habeas cases are at different stages: Mr. Covarrubias’ case has survived a motion to dismiss

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and will have a briefing schedule set for the merits of the claims. Mr. Valverde’s case is pending

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before another judge and the petition in her case has not yet been served on a Respondent. There

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will not “be an unduly burdensome duplication of labor and expense or conflicting results if the

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cases are conducted before different Judges.” Local Rule 3-12(a)(2). Finally, proceeding separately

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and before different judges makes it more likely that Ms. Valverde will understand her obligation to

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take responsibility for pursuing her federal petition and be less likely to let her husband dictate her

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presentation. The Court does not mean to suggest that the husband is controlling the wife, but just

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that it wants to be sure that the Court doesn’t push the parties toward that state of affairs.

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IV.

CONCLUSION

Respondent’s motion to dismiss is DENIED. (Docket # 22.) Petitioner’s motion for an

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extension of time to file his opposition to that motion is GRANTED (Docket # 24). Petitioner’s

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opposition filed on February 14, 2014 is deemed to have been timely filed and has been considered

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by the Court.

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the primary petitioner is DENIED. (Docket # 25, # 28, and # 29.)
In order to move this action toward resolution, the Court now sets the following briefing
schedule on the petition:
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Respondent must file and serve upon Petitioner, on or before June 27, 2014,

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For the Northern District of California

United States District Court

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The motion to proceed as a joint defense, to relate the cases and for Mr. Covarrubias to be

an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing

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cause why a writ of habeas corpus should not be issued. Respondent must file with the answer a

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copy of all portions of the court proceedings that have been previously transcribed and that are

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relevant to a determination of the issues presented by the petition.

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2.

If Petitioner wishes to respond to the answer, he must do so by filing a

traverse with the Court and serving it on Respondent on or before August 1, 2014.

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IT IS SO ORDERED.

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Dated: May 16, 2014

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_________________________
EDWARD M. CHEN
United States District Judge

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