Galvan v. Alaska Dept. of Corrections

• Decision Date: 09 February 2005
• Docket Number: No. 03-35083.,03-35083.
• Citation: 397 F.3d 1198
• Parties: Cindy Lee GALVAN, Petitioner, v. The ALASKA DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

397 F.3d 1198

Cindy Lee GALVAN, Petitioner, v. The ALASKA DEPARTMENT OF CORRECTIONS, Respondent.

No. 03-35083.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 1, 2003.

Submission Vacated December 15, 2003.

Resubmitted April 16, 2004.

Filed February 9, 2005.

Mary C. Geddes, Assistant Federal Defender, Anchorage, AK, for the petitioner.

Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, AK, for the respondent.

Appeal from the United States District Court for the District of Alaska; John W. Sedwick, District Judge, Presiding. D.C. No. CV-01-00285-JWS.

Before KLEINFELD, GOULD, and TALLMAN, Circuit Judges.

KLEINFELD, Circuit Judge.

This habeas corpus appeal turns on exhaustion.

Facts

We take the facts from the Alaska Court of Appeals memorandum opinion and judgment affirming on direct appeal.¹

In 1989, Galvan and her boyfriend, Anthony Garcia, killed a man in Colorado and fled to Alaska. A week after arriving in Juneau, they robbed and murdered another man. This case arises out of that Juneau murder.

Galvan's sentence was harsher than the Alaska "benchmark" for second degree murder because the judge considered her unusually dangerous and because her crime "approached the blameworthiness" of first degree murder. The dangerousness had to do with Galvan's history as well as the crime for which she was being sentenced. According to charges pending in Colorado, Galvan had brought another woman, helpless from intoxication, home from a bar, where she beat her with brass knuckles, pounded her head on the floor, and stole her money. Then, with the aid of a juvenile, Galvan took off the victim's clothes, cut off her hair, poured salt into her wounds, and threw her naked into the February night.

A few months later, still in Colorado, Galvan and her boyfriend reacted to what they felt to be disrespect by murdering a man. Galvan lured the man into a bathroom, her boyfriend came up behind the victim and beat him to death with a hammer, and Galvan cleaned the bathroom to obliterate the evidence.

The Juneau murder occurred a week after the couple arrived in Alaska. Galvan and her boyfriend needed money and decided that a robbery was the way to get it. Galvan rang the doorbell of a secluded home. When the victim opened the door, she and her boyfriend forced their way in. The boyfriend then stabbed the victim twenty times as he begged for his life, while Galvan took the victim's money from his wallet.

Though Galvan was charged with first degree murder, her lawyer got her a plea agreement for second degree murder. But after she pleaded no contest, she started a campaign — still continuing fifteen years after the murder — of blaming her conviction and sentence on her attorneys, a roll call of distinguished lawyers, two of whom have since been appointed to the Superior Court of Alaska. (She has also sought post-conviction relief on numerous other grounds, not raised in, or relevant to her federal habeas petition.) The lawyer who negotiated her plea moved to withdraw as counsel after Galvan sought to have the plea set aside on account of ineffective assistance of counsel. A second retained lawyer moved to withdraw because he had accepted Galvan as a client on condition that she not pursue what he saw to be a meritless claim of ineffective assistance, but then she persisted in urging it. The court appointed a third lawyer. Galvan then repeatedly and unsuccessfully moved to set aside her plea. Testimony was taken in the Alaska Superior Court on Galvan's claim of ineffective assistance, findings of fact were made (including that Galvan was not credible "on virtually every important debated statement of fact"), and the claim was decided against her, and affirmed on appeal. Galvan petitioned the Alaska Supreme Court to review the portion of the Alaska Court of Appeals decision that affirmed her sentence, but not the portion that allowed the plea to stand despite her claim of ineffective assistance of counsel.

Galvan then sought post-conviction relief in the Alaska courts, claiming that ineffective assistance of counsel had led her to plead guilty to second degree murder. The Alaska Superior Court denied her petition. She then appealed. Although Galvan mentioned in the first sentence of her brief to the Alaska Court of Appeals that she had a right to counsel under the federal and state constitutions, all her arguments were based on Alaska law, specifically that the various Alaska Supreme Court and Alaska Court of Appeals cases laying out the contours of the right to counsel were not satisfied. The Court of Appeals carefully examined all the evidence and noted that although her lawyer told Galvan that, to get a favorable sentence, she should cooperate with the authorities and distance herself from her boyfriend, Galvan did the opposite. She continued to exchange love letters with her boyfriend while awaiting sentencing, and talked with her boyfriend about "taking care" of one of the state's witnesses. There is nothing in the Court of Appeals decision regarding federal constitutional law.

Galvan then petitioned for review to the Alaska Supreme Court. This petition controls the outcome of her federal case, because, whether she had raised it or not in the lower courts, Galvan had to raise her federal claim in her petition to Alaska's highest court to exhaust her federal constitutional claim. In a well-written, counseled petition (by the Alaska Public Defender Agency), Galvan makes these arguments: (1) her lawyer in the trial court gave her overly optimistic advice regarding the sentence she could expect; (2) she should have been allowed to withdraw her plea because the advice amounted to ineffective assistance of counsel; (3) her lawyer did not warn her that the sentencing judge might restrict her parole eligibility; and (4) her lawyer gave her bad advice that caused her to file her motion to withdraw her plea later than she should have, making it harder to win. Of the twelve citations to cases in her petition, all but one are to decisions of the Alaska Supreme Court and the Alaska Court of Appeals. For her explanation of what constitutes ineffective assistance of counsel and what remedies are appropriate, Galvan relies entirely upon Alaska law. The petition is mostly a careful examination of the Alaska standards for what an attorney must tell a client.

The petition's only mention of federal law comes in the course of distinguishing an Alaska case. The Alaska case² held that a first degree murderer's erroneous belief that he would be eligible for parole during the first twenty years of his sentence did not make his plea involuntary.³ Galvan sought to withdraw her plea on the ground, among others, that she did not realize when she entered it that the Superior Court might restrict her eligibility for parole. Galvan argued that the Alaska case should be distinguished because it involved a defendant's "unilateral subjective impression," but "there is a difference between not giving any advice and giving misinformation," as she claimed occurred in this case. To illustrate this factual distinction, Galvan devoted this one sentence in her brief to discussing a federal case: "In Strader v. Garrison,⁴ the fourth circuit held that when a defendant is grossly misadvised as to parole eligibility, and is prejudiced by reliance on the incorrect advice, plea withdrawal is the appropriate remedy." Galvan's petition does not mention the Sixth Amendment to the United States Constitution.

The Alaska Supreme Court denied her petition, and Galvan filed this federal petition for a writ of habeas corpus. The well-written petition by the federal defender clearly claims, citing federal cases, that Galvan's federal constitutional rights to the effective assistance of counsel and to due process of law were violated by her lawyer's representation and her consequent "involuntary" guilty plea. The district court dismissed the petition for failure to exhaust state remedies, and Galvan appeals.

Analysis

Congress has commanded that, where there is an available and effective state corrective process, and a federal petitioner for a writ of habeas corpus has not exhausted the remedies available in the state courts, the petition "shall not be granted."⁵ The Supreme Court has explained this exhaustion requirement as being designed to further "comity" by giving the "state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts."⁶

Galvan argues that she made her partial reliance on federal constitutional law clear to the intermediate Alaska Court of Appeals. Had she failed to do so, that would go toward lack of exhaustion, but her having done so cannot establish exhaustion. Rather, Galvan must have exhausted her claim in her petition to the Alaska Supreme Court. The Court in O'Sullivan v. Boerckel holds that "a state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement."⁷ Likewise, Baldwin v. Reese holds that a "prisoner must fairly present his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim."⁸ The Supreme Court in Baldwin reversed a decision of ours that had held it was enough that the prisoner had raised the claim in a lower court whose opinion the state supreme court could read. The Supreme Court held that the petitioner had to alert the state supreme court to the claim, and could not rely on the opinion of the intermediate appellate court to do so.⁹ Because Galvan did not claim in her petition to the Alaska Supreme Court that her federal constitutional right had been violated, it does not matter what she did in the Alaska Court of Appeals. That she did assert a Sixth Amendment claim in...