Hicker v. Superior Court for Cal.
| Decision Date | 18 July 2014 |
| Docket Number | Civil No. 13-CV-2957 WQH (JMA) |
| Court | U.S. District Court — Southern District of California |
| Parties | GEORGE PAUL HICKER, Petitioner, v. SUPERIOR COURT FOR THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, Respondent. |
Petitioner George Paul Hicker ("Petitioner") has filed a Petition for Writ of Habeas Corpus ("the Petition") under 28 U.S.C. § 2254, challenging his conviction in San Diego Superior Court case number CN251716. [Doc. No. 10.] Respondent Superior Court for the State of California, County of San Diego ("Respondent") filed a motion to dismiss the Petition, contending Petitioner has failed to exhaust his state remedies on his Sixth Amendment Confrontation Clause claim. [Doc. No. 6.] Petitioner timely opposed the motion. [Doc. No. 7.]
The Court has reviewed the parties' papers, as well as the record, and for the following reasons, RECOMMENDS United States District Judge William Q.Hayes adopt the finding that Petitioner has exhausted his state court remedies. The Court further RECOMMENDS that the motion to dismiss be DENIED with prejudice, and the Petition be allowed to proceed on the merits.
On February 20, 2009, a San Diego Superior Court jury found Petitioner guilty of violating Vehicle Code § 23152(b), driving with a blood alcohol level in excess of .08, with a prior Vehicle Code § 23152(b) conviction. [Pet. at 2:24-27.] Thereafter, Petitioner was sentenced to five years of summary probation, 96 hours jail with credit for 24 hours, 5 days weekend work release, an 18-month alcohol program, a Mothers Against Drunk Driving panel class, a fine of $2,408.00, and other terms as set forth in the Misdemeanor - Traffic Judgment Minutes. [Respondent's Lodgment 1.]
Petitioner challenges his conviction in this Court with the instant habeas corpus action, pursuant to 28 U.S.C. § 2254. Specifically, he claims the trial court's admission of testimony by a blood sample analyst who did not perform the blood tests in question should not have been admitted into evidence, as it violated Petitioner's Sixth Amendment right to confront the analyst who actually performed the analysis. Petitioner maintains he would not have been convicted of violating Vehicle Code § 23152(b) if his Sixth Amendment Confrontation Clause objections to the evidence about his blood alcohol level had been sustained by the trial court judge. [Pet. at 4:2-15.]
On August 28, 2008, at 10:48 p.m., Petitioner was driving under the influence with a .142% blood alcohol content, over .06% greater than the legal maximum. [Resp. Mot. at 2:2-3.] Petitioner was pulled over and two deputy sheriffs made contact with him, whereupon they performed field sobriety tests after noticing Petitioner's red and watery eyes. [Id.] After his arrest, a sample of Petitioner's blood was taken and tested by the San Diego County Sheriff's Crime Laboratory. [Pet. at 9:6-7.] The District Attorney's office filed a complaint againstPetitioner on January 23, 2009, charging him with three counts: Count One - driving under the influence of alcohol, a violation of Vehicle Code § 23152(a); Count Two - driving with a measurable blood alcohol level above .08, a violation of Vehicle Code § 23152(b); and Count Three - driving with an open container, a violation of Vehicle Code § 23222(a). [Resp. Mot. at 2:4-9.] Petitioner pled not guilty to the charges. [Pet. at 9:11.] Count Three was dismissed at trial on the People's motion. [Resp. Mot. at 2:9.] After a jury trial (discussed below), Petitioner was acquitted of the charge of driving under the influence of alcohol and convicted of the charge of driving with a blood alcohol level of 0.08% or greater. [Pet. at 9:11-13.]
The two week jury trial began February 9, 2009 in the Superior Court for the County of San Diego in Vista, California. [Id. at 9:14-16.] The prosecution called witness Jorge Peña ("Peña"), an analyst employed by the San Diego Crime Laboratory where Petitioner's blood sample was analyzed for blood content. Peña did not perform the analysis of Petitioner's blood. Rather, the analysis was performed by another lab technician, Raegan Carter ("Carter"). [Id. at 9:19-21.] Peña was not present during the analysis of Petitioner's blood sample, nor did he supervise Carter. [Id. at 9:21-22.] After the analysis was completed and reported by Carter, Peña reviewed her report. [Id. at 9:24-10:1.]
During direct examination of Peña, the prosecutor asked about the analysis of Petitioner's blood performed by Carter. [Id. at 10:4-5.] Petitioner objected to Peña's testimony about the blood alcohol work performed by Carter on the grounds the testimony violated his Sixth Amendment right to confrontation. The objection was overruled. [Id. at 10:6-9.] The trial court granted the request by Petitioner's counsel that his Sixth Amendment objection continue throughout the prosecutor's line of questioning. The prosecutor then asked Peña if he had an opinion about the accuracy of the blood alcohol results based upon the work performed by Carter. Again, Petitioner objected based on the Sixth Amendment.The objection was overruled. [Id. at 10:15-19.] Peña provided his opinion that the blood alcohol results were accurate and testified the blood alcohol level was .142. The blood alcohol report was then introduced into evidence. A jury subsequently convicted Petitioner for violation of Vehicle Code § 23152(b). [Resp. Mot. at 2:14-15.]
Petitioner argues the analysis set forth in the United States Supreme Court decisions of Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), and Michigan v. Bryant, 131 S.Ct. 1143 (2011), applies to the determination of whether Peña's testimony should have been permitted in Petitioner's trial. [Pet. at 17:5-13.]
Petitioner appealed his conviction to the Appellate Division of the San Diego Superior Court. The Appellate Division affirmed Petitioner's conviction, finding it was in alignment with recently decided California Supreme Court decisions, mainly People v. Lopez, 55 Cal.4th 569 (2012), dealing with confrontation.
After the Appellate Division affirmed his conviction, Petitioner filed in the Appellate Division an application for certification for transfer to the California Court of Appeal. The application was denied on March 25, 2013. [Pet. at 4:16-18.] Petitioner then filed a petition for transfer in the California Court of Appeal, Fourth Appellate District, Division One. The Court of Appeal denied the petition on April 16, 2013. Next, Petitioner filed a Petition for Writ of Certiorari in the United States Supreme Court on July 11, 2013. The petition was denied on October 7, 2013. Finally, Petitioner filed the instant Petition on December 5, 2013. Petitioner did not file a writ of habeas corpus in the California Supreme Court prior to initiating this action.
The exhaustion of available state judicial remedies generally is a prerequisite to a federal court's consideration of claims presented in habeas corpus proceedings. See Rose v. Lundy, 455 U.S. 509, 522 (1982); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). Title 28 of the United States Code § 2254(b)(1) provides that:
28 U.S.C.A. § 2254(b)(1), (c).
To satisfy the exhaustion requirement, a petitioner must first provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his [or her] constitutional claim. Anderson v. Harless, 459 U.S. 4, 6 (1982). In addition, the petitioner must have 'fairly presented' to the state courts the 'substance' of his [or her] federal habeas corpus claim. Id. Exhaustion is accomplished if the state's highest court had an opportunity to rule on the merits of the claim. Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982)(citing Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979.) If the claim was not presented to the state's highest court on direct appeal, state collateral remedies must have been exhausted. Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir. 1986.)
Here, Petitioner admits he did not present his claim to the California Supreme Court by way of either a petition for review or a habeas corpus petition. [See Pet. p. 1-8.] Generally, claims that are not presented to the state's highest court are unexhausted; however, here Petitioner was procedurally prohibited from raising his claim before the California Supreme Court.
The exhaustion requirement may be satisfied notwithstanding a failure to present a claim to the state supreme court if it is clear that (the habeas petitioner's) claims are now procedurally barred under (state) law." Gray v. Netherland, 518 U.S. 152, 16-62 (1996), quoting Castille v. Peoples, 489 U.S. 346, 351 (1989); Engle v. Isaac, 456 U.S. 107, 125-26 n.28 (1982) (); Valerio v. Crawford, 306 F.3d 742, 770 (9th Cir. 2002) (), citing Philips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001) (...
To continue reading
Request your trial