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denying habeas where petitioner made untimely request for self-representation on the morning of trial
Summary of this case from Morris v. KikendallOpinion
No. CIV 05-2436-PHX-DGC (DKD).
March 20, 2007
ORDER
Pending before the Court are Petitioner Ronnie Lynch's pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 and United States Magistrate Judge David K. Duncan's Report and Recommendation ("R R"). Dkt. ##1, 21. The R R recommends that the Court deny the petition. Dkt. #21 at 11. Petitioner has filed an objection to the R R. Dkt. #22. For the reasons set forth below, the Court will accept the R R and deny the petition.
I. Background.
Petitioner, a state prisoner proceeding pro se, was convicted in Maricopa County Superior Court on two counts of sexual conduct with a minor and one count each of sexual abuse, kidnapping, aggravated assault, transfer of marijuana to a minor, and possession of marijuana on or near school grounds. On November 24, 1999, Petitioner was sentenced to consecutive prison terms totaling 89 years. Dkt. #15-20 at 30.
Petitioner filed the instant petition on August 12, 2005. Dkt. #1. The petition asserts that (1) the trial court violated his constitutional rights by not disclosing its ruling on the admissibility of the DNA evidence prior to trial, (2) the trial court empaneled biased jurors in violation of his constitutional rights, (3) the trial court violated his constitutional rights by imposing consecutive sentences, and (4) the trial court improperly denied Petitioner's motions for (a) new counsel and (b) to proceed pro se. Respondents filed an answer on November 21, 2005, arguing that claims 1-3 and 4(b) were procedurally defaulted and that all claims lacked merit. Dkt. #15.
II. Legal Standard.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), "a determination of a factual issue made by [the state court] shall be presumed to be correct" and Petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) ("If confronted by a record that supports conflicting inferences, federal habeas courts `must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'"). The Court may not grant habeas relief under the AEDPA unless it concludes that the state court's "adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding." 28 U.S.C. § 2254(d)(1)-(2); see Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003).
Nor may the Court grant habeas relief unless Petitioner has exhausted his claim in state court. 28 U.S.C. § 2254(b)(1)(A); see O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999). To exhaust state remedies properly, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan, 526 U.S. at 839-46. A claim has been fairly presented if the petitioner has described both the operative facts and the federal legal theory on which the claim is based during the direct appeal or through a petition for post-conviction relief. Tamalini v. Stewart, 249 F.3d 895, 898-99 (9th Cir. 2001) ; Bland v. Cal Dep't of Corrections, 20 F.3d 1469, 1472-73 (9th Cir. 1994), overruled on other grounds by Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc). The exhaustion requirement is not met when the petitioner fails to fairly present his claims. Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).
III. Petitioner's First Claim for Relief: Due Process Violation.
To satisfy the AEDPA's exhaustion requirement, Petitioner was required to afford the state courts an opportunity to rule on his federal due process claim by fairly presenting that claim in his state filings. Dkt. #21 at 4 (citing O'Sullivan, 526 U.S. at 839-46). Petitioner fairly presented the claim only if he alerted the state courts that the claim rested on the United States Constitution. Fields v. Waddington, 401 F.3d 1018, 1020-21 (9th Cir. 2005). To alert the state courts, Petitioner had to reference the appropriate provision of the United States Constitution within the "four corners" of his appellate briefing. Id.; see Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005).
Petitioner objects to the R R's discussion of exhaustion and procedural default by stating that the Court should not "hold the pleadings and petitions of this [pro se] petitioner to a standard [of] highly trained legal professionals" because Petitioner has limited legal resources at his disposal. Dkt. #22 at 5. Petitioner contends that mentioning the phrases "due process" and "right to fair trial" when arguing that the state failed properly to rule on his Frye motion sufficiently presented federal due process claims under the Fifth and Fourteenth Amendments. Id. at 4-6; Dkt. #15-21 at 3.
Although pleadings are construed liberally in their favor, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986); see also Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). Such general and conclusory references to "due process" and "right to fair trial" do not suffice to exhaust a federal claim. See Castillo, 399 F.3d at 1000-01 ("[Not] until the penultimate sentence did Castillo even refer to the U.S. Constitution. Finally, at the end of his argument, Castillo claimed that . . . `[he] was denied a fair trial in violation of the United States and Arizona Constitutions.' That general appeal to a `fair trial' right . . . failed to exhaust Castillo's claim. It did not reference, as we require, any specific provision of the U.S. Constitution on which he rested his claim.") (citing Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000)); Fields, 401 F.3d at 1021 ("Petitioner's briefing to the state court mentioned the `federal Constitution' twice, and `due process' once, but discussed an applicable provision of the state constitution throughout the remainder of the argument. Petitioner's mere mention of the federal Constitution as a whole . . . does not suffice to exhaust the federal claim. . . . Nor is a federal claim exhausted by a petitioner's mention, in passing, of a broad constitutional concept, such as due process.") (citing Castillo, 399 F.3d at 1002; Hiivala, 195 F.3d at 1106); Rose v. Palmateer, 395 F.3d 1108, 111 (9th Cir. 2005) ("[P]etitioners must plead their claims with considerable specificity before the state courts in order to satisfy the exhaustion requirement. . . . In addition to requiring specificity in pleading the federal nature of a claim, we also require a petitioner to articulate the substance of an alleged violation with some particularity."); Galvan v. Alaska Dep't of Corr., 397 F.3d 1198, 1204 (9th Cir. 2005) ("Briefing a case is not like writing a poem, where the message may be conveyed entirely through allusions and connotations. . . . If a party wants a state court to decide whether she was deprived of a federal constitutional right, she has to say so. . . . If she does not say so, she does not `fairly present' the federal claim to the state court.").
The magistrate judge ruled that Petitioner failed to alert the state courts of the federal nature of his due process claim when Petitioner's sole argument was that the state court misapplied its own evidentiary law. Dkt. #21 at 6. Even though Petitioner's resources are limited, the Court will not construe Petitioner's pleadings to include federal constitutional claims Petitioner did not make, especially when Petitioner cited the Sixth Amendment and Supreme Court cases to support other arguments in the same supplemental brief. See Baldwin v. Reese, 541 U.S. 27, 33 (2004) (holding that a petition fails to fairly present a claim if it "provides no citation of any case that might have alerted the court to the alleged federal nature of the claim" and if it "refers to provisions of the Federal Constitution in respect to other claims but not in respect to this one").
The Court will accept the R R's conclusion that Petitioner's first claim for relief should be denied as procedurally defaulted because Petitioner did not exhaust the claim in state courts. Dkt. #21 at 6; see Castillo, 399 F.3d at 1003 ("Castillo did not fairly present his federal due process claim to the Arizona Court of Appeals. Thus, he failed to exhaust that claim. . . . Accordingly, we . . . affirm the District Court's dismissal of his petition."); Casey v. Moore, 386 F.3d 896, 915 (9th Cir. 2004) (affirming dismissal of the petition because "Casey's federal claims were not fairly presented to the state court of appeals").
IV. Petitioner's Second Claim for Relief: Constitutional Right to Impartial Jury.
V. Petitioner's Third Claim for Relief: Fifth Amendment Violation of Due Process.
voir dire28 U.S.C. § 2254 Patton v. Yount467 U.S. 10251036-38See Tindall v. Schriro2006 WL 2361721 Sullivan v. Schriro2006 WL 1516005 13-116 Id. State v. Brown Id.
As in his first claim for relief, Petitioner failed fairly to present his federal due process claim to the state courts by neglecting to cite any constitutional provision or federal case law. Dkt. #15-21 at 4; see Fields, 401 F.3d at 1021; see also supra Part III. In his objection Petitioner continues to rely on state statutes and case law to object to the R R, which made clear that Petitioner's challenge to his sentence made under state law is not subject to federal habeas review. Dkt. #21 at 8; see Souch v. Schiavo, 289 F.3d at 622-23 (9th Cir. 2002) (holding that alleged errors of state courts in applying a state statute could not form the basis for federal habeas relief). The Court accordingly will accept the R R's conclusion that Petitioner's third claim was not properly presented to the state courts and that this Court lacks jurisdiction in habeas review to address alleged errors of state law application.
VI. Fourth Claim for Relief: Ineffective Assistance of Counsel and Self-Representation.
Petitioner's fourth claim asserts that (a) the trial court should have granted his pretrial motions to substitute counsel based upon an irreconcilable conflict, and (b) the trial court improperly denied his motion, made on the first day of trial, to represent himself. The R R concluded that the latter claim was not fairly presented to the state court and that neither claim had merit. Dkt. #21 at 8.
A. Sixth Amendment Right to Competent Counsel.
Petitioner's objection repeats the arguments in his petition and traverse, arguments the R R addressed correctly and completely. Dkt. #22 at 8; Dkt. #21 at 8-10. Petitioner additionally asserts seven new arguments supporting his belief that assistance of counsel was deficient. None of the seven specific arguments were included in the petition or traverse submitted to the magistrate judge, although several were addressed by the state courts in Petitioner's petition for post-conviction relief. Dkt. #15-13 at 23-43; Dkt. #15-15 at 117-122. Because these grounds were not raised in the petition or any of the briefing, the magistrate had no occasion to consider them.
Petitioner's new arguments are that (1) counsel never explained the state proffered plea agreement; (2) counsel filed a motion to withdraw from the case two weeks prior to the state's plea offer; (3) counsel admitted to Petitioner's wife that he was inexperienced in sex offense cases; (4) counsel Jeremy Freeman for the state filed a discovery disclosure list of witnesses and rebuttal witnesses and counsel for Petitioner did not interview or investigate potential witnesses; (5) counsel failed to procure a psychologist for the defense to examine Petitioner and establish his mental health; (6) counsel did not object to sealing of the pre-screen report filed with the court without Petitioner's knowledge; and (7) counsel knew that Petitioner's records indicated that he was in need of psychiatric treatment and that he had been held in a California mental health facility and had attempted suicide. Dkt. #22 at 9-10.
Generally, district courts are not required to address new arguments raised in objections to a magistrate judge's report. See United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000). "Although Petitioner is a pro se litigant against whom rules of procedure are not always strictly enforced, the court finds that these new arguments do not raise `a relatively novel claim under a relatively new statute' warranting consideration of new arguments." Gerardo v. Scribner, No. 05 CV 1099 JM (WMc), 2007 WL 628014, at *1 (S.D. Cal. Feb. 13, 2007) (quoting Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002) (finding that the district court abused its discretion by failing to address pro se petitioner's argument raised for the first time in objections to magistrate judge's report when petitioner was "functionally illiterate" and "was making a relatively novel claim under a relatively new statute")). The conventional nature of Petitioner's additional arguments is manifest by his inclusion of such arguments in his petition for post-conviction relief to the state court. Dkt. #15-3 at 23-43. Consequently, the Court declines to exercise its discretion to consider arguments that could have been included in Petitioner's petition to the magistrate judge. See Howell, 231 F.3d at 622 ("The magistrate judge system was designed to alleviate the workload of district courts. To require a district court to consider evidence not previously presented to the magistrate judge would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court.") (citation omitted); see also Burke v. Subia, No. CIV S-06-0459 FCD DAD P, 2007 WL 521803, at *1 (E.D. Cal. Feb. 15, 2007). The Court adopts the R R's conclusion that the trial court properly denied Petitioner's request to appoint new counsel.
B. Sixth Amendment Right to Proceed Pro Se.
Petitioner claims that his constitutional right to proceed pro se was violated when the trial court denied Petitioner's last-minute motion to waive counsel and represent himself. Dkt. #1 at 8. The R R concluded that (1) Petitioner did not fairly present this argument to the state courts because he failed to assert the claim in his petition for review to the court of appeals, and (2) in any event, the trial court's denial of Petitioner's request did not conflict with clearly established Supreme Court precedent. Dkt. #21 at 10. Petitioner objects to the R R by stating "Petitioner need only outline a claim to state a ground upon which relief can be granted and he should not be penalized for his lack of legal education or proper specific pleading formalities of lawyers." Dkt. #22 at 11.
As established in Part IV above, generalized statements that merely reiterate arguments already addressed in the R R and that are devoid of supporting authority are ineffective objections. See Tindall, 2006 WL 2361721, at *2. Even if Petitioner's assertion constituted an objection, Petitioner once again has failed by clear and convincing evidence to rebut the presumption that the trial court's ruling was correct. See 28 U.S.C. § 2254(e)(1). Petitioner made his request for self-representation on the morning of trial, months after his case had commenced. The trial court found that Petitioner's request was a delay tactic and that Petition was not capable of representing himself. Petitioner provides no evidence to rebut the presumed correctness of these findings. The Court adopts the R R's conclusion that Petitioner's self-representation claim was not fairly presented to the state courts and lacks merit.
IT IS ORDERED:
1. Magistrate Judge David K. Duncan's R R (Dkt. #21) is accepted.
2. Petitioner Ronnie Lynch's petition for writ of habeas corpus (Dkt. #1) is denied.
3. The Clerk of the Court shall terminate this action.