Inocencio v. Hedgpeth et al

Filing 20

ORDER by Judge Hamilton denying 11 Motion to Dismiss and Setting Briefing Schedule (pjhlc3, COURT STAFF) (Filed on 9/29/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HENRY PAUL INOCENCIO,

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For the Northern District of California

United States District Court

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Petitioner,

No. C 10-2334 PJH

v.

ORDER RE MOTION
TO DISMISS AND SETTING
BRIEFING SCHEDULE

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ANTHONY HEDGPATH, Warden,

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Respondent.
_______________________________/

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Petitioner Henry Paul Inocencio (“Inocencio”), a California prisoner, filed a federal

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habeas petition on May 27, 2010. On November 8, 2010, the state filed a motion to

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dismiss Inocencio’s petition as mixed, containing both exhausted and unexhausted claims.

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Inocencio filed an opposition, and the state filed a reply, and the motion was fully briefed on

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December 6, 2010. On September 27, 2011, the case was reassigned to the undersigned

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judge. Having considered the parties’ papers and the relevant legal authority, the court

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DENIES the state’s motion.

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BACKGROUND

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In 2006, an Alameda County Superior Court jury found Inocencio guilty of first

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degree murder and of being a felon in possession of a firearm pursuant to California Penal

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Code §§ 187 and 12021(a)(1). The jury also found true allegations that Inocencio

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personally discharged a firearm causing great bodily injury and that he intentionally fired a

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handgun from a motor vehicle at another person outside the vehicle. On March 20, 2006,

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the court sentenced Inocencio to life imprisonment without parole.

Inocencio subsequently filed both a direct appeal and habeas petitions with the state

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courts. On September 26, 2007, the California Court of Appeal affirmed Inocencio’s

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conviction in a written opinion. The California Supreme Court issued a postcard order

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denying review on December 12, 2007.
Inocencio then sought habeas relief from the Alameda County Superior Court, which

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the court summarily denied for “failure to state a prima facie case for relief” on October 18,

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2008. Inocencio subsequently appears to have then filed two petitions for habeas relief

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with the California Court of Appeal, one on November 17, 2008, and a second on June 19,

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2009. The California Court of Appeal denied both, the first on November 26, 2008, and the
second on June 23, 2009.

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For the Northern District of California

United States District Court

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Inocencio filed a habeas petition with the California Supreme Court on July 6, 2009,

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which the court denied on December 2, 2009, pursuant to In re Swain, 34 Cal.2d 300, 304

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(Cal. Sup. Ct. 1949).
DISCUSSION

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A.

Parties’ Arguments
In its November 8, 2010 motion to dismiss, the state argued that Inocencio’s petition

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should be dismissed as mixed because it contains both exhausted and unexhausted

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claims. See Rose v. Lundy, 455 U.S. 509, 519 (1982). The state’s motion is cursory, and

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it simply argues that “some” of the claims are unexhausted - those that were denied by the

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California Supreme Court with a citation to Swain, 34 Cal.2d at 304.

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In opposition, Inocencio requests this court to conduct an independent review of his

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state habeas petition to determine which of his claims were fairly presented before the

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California Supreme Court, and therefore may be deemed exhausted, pursuant to the

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procedure prescribed by the Ninth Circuit in Kim v. Villalobos, 799 F.2d 1317, 1319-20 (9th

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Cir. 1986). Inocencio argues that all of his claims presented to the California Supreme

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Court should be deemed exhausted at this stage. However, to the extent that they are not,

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Inocencio requests the court grant him leave to amend his petition to delete the

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unexhausted claims.
In reply, the state argues that Inocencio did not provide the California Supreme

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Court with a sufficient factual basis to decide the claims he presented in his state habeas

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petition, and that the claims should be deemed unexhausted for that reason.

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B.

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Analysis
Neither party has specified which claims are at issue in the instant federal habeas

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petition, let alone which claim(s) the respective parties contend are exhausted and

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unexhausted. Accordingly, in making the determinations relevant to this motion, the court

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has reviewed Inocencio’s petition before this court, the exhibits to the motion to dismiss,
and has afforded special attention to the issues Inocencio raised on direct appeal and

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For the Northern District of California

United States District Court

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those that he raised in his habeas petition filed with the California Supreme Court.

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In addition to requesting an evidentiary hearing, Inocencio raises seven claims in his
federal habeas petition, including that:
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he was denied effective assistance of trial counsel under the Sixth

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Amendment when his counsel failed to conduct “any meaningful investigation

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into the facts of his case, potential defenses, or potential exculpatory

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witnesses;”

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2)

he was denied effective assistance of appellate counsel under the Sixth

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Amendment when his counsel “unjustifiably declined to raise a viable

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argument,” an ineffective assistance of counsel claim, on direct appeal;

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3)

the prosecution improperly vouched for the credibility of its witnesses and

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made inappropriate statements disparaging defense witnesses in violation of

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his due process and fair trial rights;

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4)

under the Eighth Amendment;

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his sentence was cruel and unusual and constitutes excessive punishment

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his due process and fair trial rights were violated when the prosecution
improperly utilized its peremptory challenges to strike Hispanic jurors;

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that someone else was the shooter; and

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his due process rights were violated when the trial court excluded evidence

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his due process rights were violated when the trial court admitted evidence of

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a confidential communication between a witness and an attorney.

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The latter three claims, claims five, six, and seven, stated above, were clearly

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exhausted in the course of Inocencio’s direct appeal before the state courts. They are not

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at issue in the instant motion.

were raised in the habeas petition that the California Supreme Court denied under Swain.

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In Kim v. Villalobos, the petitioner similarly filed a habeas petition in federal court following

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For the Northern District of California

Claims one through four are the only claims at issue in the motion to dismiss. They

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United States District Court

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the California Supreme Court's postcard denials of his two state habeas petitions. 799

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F.2d at 1319-20. The Ninth Circuit rejected respondent's argument that the federal petition

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was unexhausted to the extent that the denial was based on In re Swain, 34 Cal.2d at 300,

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the same case cited by the California Supreme Court in Inocencio’s case. Id. The Ninth

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Circuit held that the state court’s citation to that particular portion of the Swain decision

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indicated that the state court found the petitioner had not presented his claims with

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sufficient particularity. Id.

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The Kim court went further and set forth a procedure for federal habeas courts’

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review or screening of claims denied by the California Supreme Court under Swain. Id. It

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held that the California Supreme Court’s citation of Swain does not per se establish that a

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petitioner has failed to exhaust the claims denied by that court. Id. The Ninth Circuit held

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that it was “incumbent” on the federal court “in determining whether the federal standard of

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‘fair presentation’ of a claim to the state courts has been met, independently to examine

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[the petitioner’s] petition to the California Supreme Court.” Id. at 1320. If the federal court

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agrees with the petitioner, and determines that the claims were presented to the California

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Supreme Court with particularity, or “that they are incapable of being alleged with any

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greater particularity,” then the petitioner “would then have fairly presented his claims to the

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state court and would be entitled to pursue them in federal court.” Id. The court reasoned

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that, “[t]he state courts, by denying a writ for lack of particularity when the claims are

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alleged with as much particularity as is practicable, cannot forever preclude the petitioner

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from reaching federal court.” Id.
However, if the federal court reviews the claims and determines that indeed they

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were not raised before the California Supreme Court with particularity, then the Kim court

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noted that “[t]hat deficiency, when it exists, can be cured in a renewed petition” to the

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California Supreme Court. Id. (emphasis added).

California Supreme Court habeas petition leads the court to conclude that all four of

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For the Northern District of California

This court’s independent examination of the claims raised by Inocencio in his

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United States District Court

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Inocencio’s claims at issue here were fairly presented in his habeas petition to the state

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court.

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i.

Claim One: Ineffective Assistance of Trial Counsel

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In this first claim, Inocencio contended that his trial counsel provided ineffective

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assistance of counsel when he: (1) failed to promptly and adequately conduct a pretrial

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investigation; (2) subpoena and investigate witnesses; (3) move for a change of venue; and

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(4) was biased such that he prejudiced Inocencio’s defense. Inocencio provided nearly four

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pages of factual support in addition to the legal support for this claim and sub-claims. For

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example, Inocencio named witnesses and evidence, including bullet casings and security

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tapes, that his counsel failed to investigate.

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Accordingly, the court concludes that the claim was fairly presented to the California
Supreme Court and has been properly exhausted.

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ii.

Claim Two: Ineffective Assistance of Appellate Counsel

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In his second claim, Inocencio contended that he made his appellate counsel aware

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of the above ineffective assistance of counsel claim prior to the filing of his direct appeal,

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and that appellate counsel promised him he would raise the issue, but failed to do so.

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Inocencio provided sufficient factual and legal support for this claim as well.

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Accordingly, the court concludes that the claim was fairly presented to the California
Supreme Court and has been properly exhausted.

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iii.

Claim Three: Prosecutorial Misconduct

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In his third claim, Inocencio cited to six alleged incidents of prosecutorial

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misconduct, and provided citations to the reporter’s transcripts in support. He thus

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provided sufficient factual and legal support for this claim as well.

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Supreme Court and has been properly exhausted.
iv.

Claim Four: Eighth Amendment Claim

In his fourth claim, Inocencio argues that given his age, the crime, and his criminal

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For the Northern District of California

United States District Court

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Accordingly, the court concludes that the claim was fairly presented to the California

history, his life sentence without parole violated the Eighth Amendment. This claim

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presents a purely legal issue, and was fairly presented to the California Supreme Court and

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has been properly exhausted.

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For these reasons, the court DENIES the state’s motion to dismiss.

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The state is ORDERED to file with the court and serve on Inocencio, within 60 days

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of the date 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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issued, addressing all seven claims set forth above. The state shall file with the answer

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and serve on Inocencio a copy of all portions of the administrative record that are relevant

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to a determination of the issues presented by the petition.

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If Inocencio wishes to respond to the answer, he shall do so by filing a

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traverse with the court and serving it on the state within 30 days of his receipt of the

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answer.

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IT IS SO ORDERED.

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Dated: September 29, 2011
________________________________
PHYLLIS J. HAMILTON
United States District Judge

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