Carter v. Asuncion

Filing 21

ORDER by Judge James Donato granting 9 Motion to Dismiss. (lrcS, COURT STAFF) (Filed on 3/1/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

HAROLD CARTER,
Petitioner,

8
9
10

United States District Court
Northern District of California

11

Case No. 16-cv-07167-JD

ORDER GRANTING MOTION TO
DISMISS AND DENYING
CERTIFICATE OF
APPEALABILITY

v.
DEBBIE ASUNCION,
Respondent.

Re: Dkt. No. 9

12
13

Harold Carter, a pro se state prisoner, filed a habeas petition under 28 U.S.C. § 2254.

14

Respondent originally filed a motion to dismiss on the ground that the petition was barred by the

15

statute of limitations. The Court advised Carter to file an opposition and provided an extension of

16

time for him to do so, but Carter failed to submit any filings or otherwise communicate with the

17

Court. The Court reviewed the motion and ordered both parties to file additional briefing

18

regarding exhaustion and equitable tolling. Respondent filed supplemental briefing regarding

19

exhaustion and argued that none of the claims have been exhausted. Twice since ordering the

20

additional briefing, the Court advised Carter that he must file briefing and that he should address

21

whether he seeks a stay if the claims are unexhausted. Carter has not submitted any filings or

22

otherwise communicated with the Court. The Court has still looked to the merits of the motion

23

and finds that the petition is unexhausted.

24
25

BACKGROUND
On June 25, 2012, Carter was sentenced to 25 years to life. Motion to Dismiss (“MTD”)

26

Ex. 2. On direct review to the California Court of Appeal, Carter raised a single claim alleging

27

that the trial court erred by allowing the prosecution to cross examine him with a prejudicial

28

photograph if he were to testify. MTD Ex. 7. On June 27, 2014, the California Court of Appeal

1

affirmed the judgment. MTD Ex. 3. Carter sought review in the California Supreme Court, but

2

the court denied review. MTD Exs. 4, 8. Carter filed a state habeas petition in the Alameda

3

County Superior Court raising a claim that the prosecution violated Brady v. Maryland, 373 U.S.

4

83 (1963). MTD Ex. 5. The superior court denied the petition. MTD Ex. 6. Carter filed no other

5

state petitions.

6

As grounds for federal habeas relief, Carter asserts that: (1) the prosecution violated Brady

7

v. Maryland, 373 U.S. 83 (1963); (2) trial counsel was ineffective; and (3) the trial court erred by

8

allowing the prosecution to cross examine him with a prejudicial photograph if he were to testify.

9
10

EXHAUSTION
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings

United States District Court
Northern District of California

11

either the fact or length of their confinement are first required to exhaust state judicial remedies,

12

either on direct appeal or through collateral proceedings, by presenting the highest state court

13

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

14

federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982).

15

The exhaustion requirement is satisfied only if the federal claim (1) has been “fairly

16

presented” to the state courts, see Picard v. Connor, 404 U.S. 270, 275 (1971); or (2) no state

17

remedy remains available, see Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). Peterson v.

18

Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) (en banc). State courts must be alerted to the

19

fact that prisoners are asserting claims under the United States Constitution in order to be given

20

the opportunity to correct alleged violations of federal rights. Duncan v. Henry, 513 U.S. 364,

21

365-66 (1995); see Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (characterizing Picard as

22

requiring “reference to a specific federal constitutional guarantee” in state court; presentation of

23

facts underlying claim not sufficient); Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005)

24

(general reference to federal Constitution “as a whole, without specifying an applicable provision,

25

or an underlying federal legal theory, does not suffice to exhaust the federal claim.”). Ordinarily a

26

state prisoner does not fairly present a claim to a state court if that court must read beyond a

27

petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in

28

order to find material that does so. Baldwin v. Reese, 541 U.S. 27, 30-34 (2004); see, e.g., id.
2

1

(where state petitioner did not claim specifically in brief presented to state supreme court that

2

appellate counsel’s performance violated federal law, claim was not fairly presented even though

3

that court had the opportunity to read lower court opinions which could have shown the claim was

4

cast in federal terms). “A litigant wishing to raise a federal issue can easily indicate the federal

5

law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with

6

the claim the federal source of law on which he relies or a case deciding such a claim on federal

7

grounds, or by simply labeling the claim federal.” Baldwin, 541 U.S. at 32. A claim is “fairly

8

presented” only if the petitioner either referenced specific provisions of the federal constitution or

9

federal statutes, or cited to federal or state case law analyzing the federal issue. Peterson, 319
F.3d at 1158 (holding that a federal claim can be fairly presented by citation to state cases

11
United States District Court
Northern District of California

10

analyzing the federal issue). Citation of irrelevant federal or state cases—for instance cases

12

which discuss federal evidentiary rules or the Fifth Amendment when the federal habeas claim is

13

based on the Fourteenth Amendment—does not suffice. Castillo v. McFadden, 399 F.3d 993,

14

1001 (9th Cir. 2004).

15

For purposes of exhaustion, pro se petitions in state court may, and sometimes should, be

16

read differently from counseled petitions. Peterson, 319 F.3d at 1159. “When a document has

17

been written by counsel, a court should be able to attach ordinary legal significance to the words

18

used in that document.” Id. at 1159.
DISCUSSION

19
20

Carter’s ineffective assistance of counsel claim and Brady claim were never presented to

21

the California Supreme Court and are therefore unexhausted. Carter’s claim that the trial court

22

erred by allowing the prosecution to cross examine him with a prejudicial photograph was

23

presented to the California Supreme Court. Respondent argues that Carter failed to allege any

24

federal constitutional basis for the claim, thus no federal claim was exhausted and the entire

25

petition is unexhausted.

26

In his appeal to the California Court of Appeal, Carter, represented by counsel, specifically

27

argued that the trial court’s ruling regarding the prejudicial photograph violated the Fifth, Sixth

28

and Fourteenth Amendments of the Constitution. MTD Ex. 7 at 15. Carter presented specific
3

1

arguments and cited to a federal case. Id. at 27-30. The California Court of Appeal held that

2

Carter failed to preserve his claim for review on appeal and regardless the claim failed on the

3

merits. MTD, Ex. 3 at 3-5.
However, Carter did not present any claims or arguments in the petition to the California

4
5

Supreme Court regarding a violation of his federal rights. Carter, still represented by counsel,

6

argued that the trial court erred with respect to the prejudicial photograph but only argued that it

7

was a violation of state law. MTD Ex. 8 at 13-20. Carter cited to no federal cases, federal law or

8

constitutional amendments for this aspect of his claim. Id. 1
Carter also separately argued to the California Supreme Court that he had preserved his

9

claim for review and he did cite to one federal case, Luce v. United States, 469 U.S. 38 (1984). In

11
United States District Court
Northern District of California

10

Luce, the Supreme Court adopted as a rule of federal criminal procedure that an error in a ruling

12

on the admissibility of a prior offense for purposes of impeachment is preserved for appeal only if

13

the defendant testifies and suffers impeachment. Id. at 43. While this issue was argued on appeal

14

in the state courts, Carter’s claim in the federal petition is that his federal rights were violated by

15

the trial court’s decision regarding the photograph. The California Court of Appeal also looked to

16

the merits of the claim in denying it. It is clear from the federal petition that Carter is challenging

17

the evidentiary ruling by the trial court as a violation of the federal constitution, but he failed to

18

present this claim to the California Supreme Court. The federal claim is unexhausted. See

19

Duncan, 513 U.S. at 366. To the extent Carter exhausted a claim challenging the state evidentiary

20

ruling under state law and seeks to challenge that ruling in this petition, he fails to present a

21

federal claim. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (explaining that “it is not the

22

province of a federal habeas court to reexamine state-court determinations on state-law

23

questions”).
Carter has presented an entirely unexhausted federal petition, but a district court has the

24
25

discretion to stay a petition that contains only unexhausted claims under the circumstances set

26
1

27
28

Carter did not cite to any denial of due process and even if he had, a petitioner “may not . . .
transform a state-law issue into a federal one merely by asserting a violation of due process.”
Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996), as modified on denial of reh’g and reh’g en
banc (1997).
4

forth in Rhines v. Weber, 544 U.S. 269, 277-78 (2005). Mena v. Long, 813 F.3d 907, 909 (9th Cir.

2

2016). When faced with a post-AEDPA mixed petition, the Court, before dismissing the petition,

3

must sua sponte inform the habeas petitioner of the mixed petition deficiency and provide him an

4

opportunity to amend the mixed-petition by striking unexhausted claims as an alternative to

5

suffering dismissal. Jefferson v. Budge, 419 F.3d 1013, 1016 (9th Cir. 2005) (citing Rhines, 544

6

U.S. at 277) (court’s erroneous dismissal of mixed petition entitled petitioner to equitable tolling

7

of one-year AEDPA statute of limitations from the date the first habeas petition was dismissed

8

until the date the second habeas petition was filed). On three separate occasions the Court

9

provided Carter an opportunity to address whether this petition is mixed or unexhausted and

10

whether he would seek a stay to exhaust the claims. Docket Nos. 14, 16, 19. Carter has not

11
United States District Court
Northern District of California

1

responded and has failed to request a stay. This case is dismissed without prejudice as

12

unexhausted. If Carter exhausts his claims in state court he may then file a new federal petition,

13

though the Court takes no position if such a petition would be timely.
CONCLUSION

14
15
16
17

1. Respondent’s motion to dismiss (Docket No. 9) is GRANTED and this case is
DISMISSED without prejudice as unexhausted.
2. A certificate of appealability (“COA”) will not issue because this is not a case in which

18

“jurists of reason would find it debatable whether the petition states a valid claim of the denial of a

19

constitutional right and that jurists of reason would find it debatable whether the district court was

20

correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court

21

declines to issue a COA regarding the procedural holding or the underlying claims of the petition.

22
23

IT IS SO ORDERED.
Dated: March 1, 2018

24
25
JAMES DONATO
United States District Judge

26
27
28
5

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3
4

HAROLD CARTER,

Case No. 16-cv-07167-JD

Plaintiff,
5
v.

CERTIFICATE OF SERVICE

6
7

DEBBIE ASUNCION,
Defendant.

8
9
10

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

11
12
13
14
15

That on March 1, 2018, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

16
17
18

Harold Carter
G13886
P.O. Box 5101
Delano, CA 93216

19
20
21

Dated: March 1, 2018

22
23

Susan Y. Soong
Clerk, United States District Court

24
25
26
27

By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

28
6