Acosta-Huerta v. Estelle

• Decision Date: 23 January 1992
• Docket Number: No. 90-56283.,90-56283.
• Citation: 7 F.3d 139
• Parties: Jesse ACOSTA-HUERTA, Petitioner-Appellant, v. Wayne ESTELLE, Warden, California Men's Colony, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

7 F.3d 139

Jesse ACOSTA-HUERTA, Petitioner-Appellant, v. Wayne ESTELLE, Warden, California Men's Colony, Respondent-Appellee.

No. 90-56283.

United States Court of Appeals, Ninth Circuit.

Submitted January 7, 1992.^*

Decided January 23, 1992.

Amended Opinion filed October 8, 1993.

Jesse Acosta-Huerta, pro per.

Peter Quon, Jr., Deputy Atty. Gen., San Diego, CA, for respondent-appellee.

Before: FARRIS, NOONAN, and TROTT, Circuit Judges.

TROTT, Circuit Judge:

Jesse Acosta-Huerta, proceeding pro se, filed a petition for writ of habeas corpus in federal district court. In his petition, Acosta-Huerta alleges a violation of his Sixth Amendment right to confront an adverse witness when a sworn deposition was read into evidence after the state trial court declared the witness to be "unavailable." Additional allegations of error in the state proceeding include failure to sever the trial and failure to grant a new trial because the prosecutor suppressed relevant evidence. The petition for writ of habeas corpus was denied by the district court. A certificate of probable cause was issued by this court. Reviewing the trial court's denial of the petition de novo, Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991), we affirm.

I

Joe "Nico" Varela, a member of the Mexican Mafia and a heroin dealer, was found dead in a remote drainage canal near Brawley, California. Previously, he had threatened Joe Montenegro ("Joe"), one of Acosta-Huerta's codefendants, and his family because Joe was apparently buying heroin from other sources.

On October 5, 1980, Nico stopped at Joe's house. He told Vickie Montenegro ("Vickie") that he "wasn't going to take any shit from anybody," and then drove away. Joe, Robert Montenegro ("Robert"), Henry Gonzales, and Acosta-Huerta saw Nico and talked amongst themselves about "getting rid" of him because he was "starting too much shit."

That same day, Nancy Googe, Gonzales' ex-wife, went to Joe's house to buy some heroin from Vickie. About an hour after her arrival she thought she heard Nico's car in the driveway. To avoid a confrontation, she departed through a back bedroom window.

At about 6:00 p.m., Nico, Gonzales, Acosta-Huerta, Jesse Vasquez, Joe, and Robert arrived at Joe's house and began injecting heroin. Nico, after several injections, fell asleep in a chair. Acosta-Huerta, Robert, and Joe pulled Nico from the chair, carried him to a parked car, and placed him in the front passenger's seat. Robert, Gonzales, Acosta-Huerta, and Vasquez drove off, leaving Joe behind. Three of the men, including Acosta-Huerta, carried revolvers with them when they left. Later that evening, Robert told Joe that the men had shot Nico. Two months later, Acosta-Huerta told Vickie he had put a bullet in Nico's head.

On December 6, 1982, after murder charges had been filed and pursuant to court order, Googe was conditionally examined in California.¹ The defendants waived their personal appearances, but defense counsel attended and cross-examined Googe regarding the death of Nico. Googe's testimony corroborated the state's case. The testimony also partially supported Acosta-Huerta's alibi defense that he was moving during the week of the killing. At the conclusion of the conditional examination, Googe was served by Acosta-Huerta's counsel with a subpoena to appear at trial. Googe did not comply with the subpoena.

On March 4, 1983, the state trial court issued a "Certificate of Judge of Requesting State for Attendance of Out-of-State Witness," pursuant to the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases,² to compel Googe's attendance at trial.

The prosecutor and an investigator travelled to Yuma, Arizona, in an attempt to persuade Googe to appear at the California trial. Googe indicated that she would rather "rot" in an Arizona jail. A hearing on the certificate was held in the Superior Court of Arizona on March 8, 1983. The prosecutor testified about the materiality of Googe as a witness. When asked by the Arizona judge whether he could give any reason why Googe should not appear in California, the prosecutor candidly explained the dangerous circumstances surrounding the case and advised the court that Googe had been threatened.

The Arizona court thereafter denied the request under the Uniform Act for three reasons: (1) Googe had been deposed earlier where she was available for examination by all parties; (2) threats of physical harm had been made against Googe and her family; and (3) appearance in California would constitute an undue hardship on Googe.³ SER-17. The defendants did not challenge the Arizona findings. Based upon the Arizona order, the California trial court ruled that the prosecution had exercised due diligence in trying to obtain Googe's presence at trial and declared her to be an "unavailable" witness. Her prior testimony was read into the record.

A jury trial found Acosta-Huerta and some of his codefendants guilty of first degree murder and conspiracy to murder. The conviction was affirmed by the California Court of Appeal.⁴ He is currently serving concurrent sentences of 25 years to life.

II

The state alleges that Acosta-Huerta failed to exhaust his state remedies, as required by 28 U.S.C. § 2254(b) (1988), on some issues raised before this court. It claims that we are precluded from considering the prosecutor's alleged: (1) knowledge that Googe's statement would corroborate Acosta-Huerta's defense of alibi Appellant's Brief at 22-23, 35; (2) procurement of alibi-impeaching testimony from Rosario Valverde that he had helped Acosta-Huerta move on a day other than a Sunday Appellant's Brief at 22, 27-28; and (3) misleading representation to the court that "good faith" was utilized in locating Googe Appellant's Brief at 18. Appellee's Brief at 19-21.

Acosta-Huerta unsuccessfully sought a rehearing from the opinion of the Fourth Appellate District. He then filed a petition for review in the California Supreme Court, alleging only that characterization of Valverde as a mere accomplice was error. Review was denied in a brief order. Subsequently, he filed a petition for writ of habeas corpus in the California Supreme Court and presented all issues originally brought before the Court of Appeal. The Supreme Court summarily denied the petition.

A direct appeal is not necessary to exhaust state remedies if state law provides an alternative route of review through a writ of habeas corpus brought before the state's highest court. See Irvin v. Dowd, 359 U.S. 394, 406, 79 S.Ct. 825, 832, 3 L.Ed.2d 900 (1959); Wade v. Mayo, 334 U.S. 672, 677-79, 68 S.Ct. 1270, 1273-74, 92 L.Ed. 1647 (1948). California's

general rule is that habeas corpus cannot serve as a substitute for appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.

People v. Sumstine, 36 Cal.3d 909, 206 Cal. Rptr. 707, 714, 687 P.2d 904, 911 (1984) (quotation omitted). Acosta-Huerta, pursuant to California law, has exhausted state procedures relating only to the issues raised in the petition for direct review before the California Supreme Court.

The Supreme Court in Ylst v. Nunnemaker, ___ U.S. ___, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991), enunciated a presumption to determine whether there has been a decision on the merits when a state's highest court issues an unexplained order denying an appeal or petition to that court. The Court determined that "where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Nunnemaker, ___ U.S. at ___, 111 S.Ct. at 2594.

Although not addressed by the district court, Acosta-Huerta failed to bring before the California Supreme Court on direct appeal not only the issues noted by the state, but also the broader issues of whether a severance should have been granted and the admissability of Googe's testimony. TD 3 Exh. 4. However, for purposes of federal habeas corpus, Acosta-Huerta has exhausted state procedures relating to all claims addressed by the California Court of Appeal's opinion. Although it appears there was a procedural defect in Acosta-Huerta's state habeas petition because he failed to previously raise all claims on direct appeal, we will "presume that no procedural default has been invoked by a subsequent unexplained order that leaves the judgment or its consequences in place." Nunnemaker, ___ U.S. at ___, 111 S.Ct. at 2594.

The presumption, however, may not address the precise arguments the state now alleges Acosta-Huerta failed to exhaust. Acosta-Huerta argued in the state petition for habeas corpus that: (1) Googe's testimony was necessary to his alibi defense ER (state habeas petition) at 30-31, 35; (2) Valverde testified that Acosta-Huerta moved on a weekday id. at 31-32; and (3) the prosecutor mislead the trial court id. at 37-38. He failed to argue, however, that the prosecutor intentionally procured Valverde's testimony knowing that it was false.

We need not decide whether the decision of the Court of Appeal, although it did not accept or reject Acosta-Huerta's specific allegations of misconduct, was an exhaustion of these claims. Because the exhaustion doctrine exists as a matter of comity, Granberry v. Greer, 481 U.S. 129, 133, 107 S.Ct. 1671, 1674, 95 L.Ed.2d 119 (1987), we have jurisdiction to consider unexhausted claims in a mixed habeas petition if those claims "clearly do not rise to the level of alleged deprivations of constitutional rights." James S. Liebman, Federal Habeas Corpus Practice and Procedure § 9.3(b), at 122 (1988). Although Professor Liebman suggests that this exception is applicable to all cases, the cases that he cites all involve mixed habeas petitions. In such cases, courts have understandably denied...