Hillery v. Pulley

Decision Date09 March 1982
Docket NumberNo. Civil S-78-594 LKK.,Civil S-78-594 LKK.
Citation533 F. Supp. 1189
CourtU.S. District Court — Eastern District of California
PartiesBooker T. HILLERY, Jr., Petitioner, v. Reginald PULLEY, Acting Warden, California State Prison, San Quentin, California, Respondent.

COPYRIGHT MATERIAL OMITTED

Clifford Tedmon, Sacramento, Cal., for petitioner.

George Deukmejian, Atty. Gen., Wm. George Prahl, Deputy Atty. Gen., Sacramento, Cal., for respondent.

OPINION AND ORDER

KARLTON, District Judge.

For the second time1 I turn to the extremely difficult procedural problems tendered by this petition for habeas corpus.2

Despite the long history of federal review of state convictions under habeas corpus,3 a remarkable number of important procedural questions have received little or no attention. This Opinion addresses some of these crucial questions of procedure as well as important substantive issues. In essence, I first decide here that under certain circumstances a respondent may, with leave of court, move to dismiss a petition for habeas corpus. The Opinion then considers what standards are applied to resolution of the motion. Next, I consider the proper relationship between the exhaustion doctrine, see 28 U.S.C. § 2254(b) & (c), and the power of the federal court to develop its own factual record, either under Rule 7 of the Rules Governing Section 2254 Cases in the District Courts4 or pursuant to 28 U.S.C. §§ 2246, 2247. I determine that where the record has been expanded pursuant to Rule 7 and as a result of expansion the record now reveals that the petitioner has not exhausted his state remedies, the petition should be dismissed without prejudice to allow the state court to review the unexhausted claim. On the other hand, I determine that if the failure to exhaust is not discovered until the evidentiary hearing stage, the court should resolve the claim on its merits. Finally, I consider and reject respondent's contention that the facts elicited through the expansion of the record in this case fundamentally transforms the substance of petitioner's claim resulting in the conclusion that the matter has not been fairly presented to the state court. To place these issues in their proper context, I must turn to a brief description of the procedural history of Hillery's various attempts to have the issue presented by this petition resolved.

In 1962 petitioner (a Black man) was indicted for murder in Kings County, California. At a pretrial hearing he sought dismissal of the indictment premised on an alleged systematic exclusion of members of his race from the Grand Jury. The motion was heard by the superior court judge who selected the Grand Jury and was denied. Thereafter a trial was held and petitioner was convicted and sentenced to death. Subsequent to that conviction the California Supreme Court, on four separate occasions, has considered the propriety of either the conviction itself or the imposition of the death penalty. In People v. Hillery, 34 Cal.Rptr. 853, 386 P.2d 477 (1963), the Court unanimously affirmed the conviction of murder in the first degree and the judgment of death. That decision resolved, adverse to the petitioner, the issue presented by the instant petition — namely, the alleged systematic exclusion of Blacks from the Grand Jury which indicted him. Thereafter, the Court vacated its decision and granted a rehearing to consider the conviction in light of certain of its own recent decisions dealing with questions unrelated to the issue presented by this petition. Once again the Court rejected the petitioner's assertion that Blacks had been systematically excluded from the Grand Jury which indicted him in affirming the conviction. The imposition of the death penalty, however, was reversed, requiring a new penalty trial. People v. Hillery, 62 Cal.2d 692, 44 Cal.Rptr. 30, 401 P.2d 382 (1965). Petitioner's subsequent contacts with the California Supreme Court were limited to the repeated instances in which a jury imposed the death penalty and the Court reversed; In re Hillery, 71 Cal.2d 857, 79 Cal.Rptr. 733, 457 P.2d 565 (1969) (death penalty vacated under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)); People v. Hillery, 10 Cal.3d 897, 112 Cal.Rptr. 524, 519 P.2d 1222 (1974) (death penalty vacated by virtue of the Court having found the statute under which the death penalty was imposed unconstitutional).

On May 22, 1978, Hillery filed a pro se petition for a writ of habeas corpus in the United States District Court for the Northern District of California. That matter was transferred to this district and assigned to the Honorable Thomas J. MacBride who, believing petitioner had made a prima facie showing, ordered the state to show cause why the writ should not be granted. After the state's filing, Judge MacBride took senior status and, upon my appointment, the matter was transferred to me. I believed that the documents then before the court were insufficient in and of themselves to demonstrate a prima facie case and vacated that portion of the previous order. At that time I appointed counsel and ordered the record expanded pursuant to Rule 7. I also ordered the parties to file status reports preparatory to a status conference set pursuant to Rule 125 of the Local Rules of Practice of this district. See Order of March 27, 1980.

The state responded to the March, 1980 Order with a variety of motions disposed of in my Opinion and Order published at 496 F.Supp. 632 (E.D.Cal.1980). Responses to the interrogatories directed to the parties by the court in the order to expand the record were filed and status conferences were held in March 1981 and again in September 1981. At the latter conference "the parties stipulated that petitioner was in possession of evidence demonstrating a prima facie case sufficient to warrant this court issuing an order to show cause as to why a writ should not issue and that an evidentiary hearing is required to establish the facts underlying petitioner's case." Status Conference Order of September 29, 1981. The oral stipulation adverted to in the Status Conference Order was then embodied in a written stipulation which clarified the state's position. The subsequent written stipulation recognized that by so stipulating, the state "was not waiving any objections they (sic) had to the admissibility of any `new' evidence offered by petitioner in support of his claim for relief." Purporting to respond to this court's order of September 29, 1981, respondent has moved to dismiss.

I THE PROCEDURAL BASIS OF RESPONDENT'S MOTION

For the second time in this case respondent has filed a motion to dismiss without suggesting "any procedural basis for its motion." Hillery v. Sumner, 496 F.Supp. 632, 634 (E.D.Cal.1980). The court is somewhat frustrated by respondent's approach because, without being informed of the authority for the bringing of said motion, the court cannot be certain (a) whether it can be entertained and (b) if so, the standards which are to be applied in its disposition.5 Despite the fact the issue was unaddressed in the respondent's moving papers, I believe that there is authority to bring on its motion.6 Moreover, given the history of this case said motion, although it might be viewed as premature, may be entertained. I turn now to the history of this action and its effect on the resolution of this issue.

A. When is a Motion to Dismiss a Habeas Corpus Petition Proper?

As the procedural history noted above recites, I vacated Judge MacBride's finding of a prima facie case and requested an expansion of the record including answers to interrogatories. See Rule 7. While such a procedure is appropriate and well recognized, it is clear that the state's response to the request for information and the resulting expansion of the record does not itself constitute a formal response to the petition.7 Thus, when I vacated the portion of Judge MacBride's order pertaining to a finding that a prima facie case existed, I in effect determined that it was uncertain whether the petition could be ruled on summarily. Accordingly, given the order, the state had no obligation to formally respond to petitioner's pleadings.

By its subsequent stipulation that petitioner possessed facts sufficient for a prima facie case, however, the state admitted that summary disposition was inappropriate. Such an admission requires that "the judge shall order the respondent to file an answer or other pleading ... or to take such other action as the judge deems appropriate." Rule 4. Following such an order the respondent must file an answer which "shall respond to the allegations of the petition. In addition, it shall state whether the petitioner has exhausted his state remedies...." Rule 5. Through the present motion the state asserts its position that petitioner has failed to exhaust his state remedies. The Advisory Committee Notes to Rule 5 suggest that "an alleged failure to exhaust state remedies ... may be raised by a motion by the attorney general, thus avoiding the necessity of a formal answer as to that ground." Generally, the result of failure to exhaust is dismissal without prejudice. See Advisory Committee Note to Rule 4. Thus, a motion to dismiss, brought on in a timely manner after the court determines summary disposition is inappropriate but prior to answer, appears to be a proper procedural device by which to test the issue.

Unfortunately, resolution of the question of the propriety of this motion is not quite as simple as the analysis set forth above suggests. It appears that a motion to dismiss may not be filed without leave of court. As noted, Rule 4 provides that upon the district judge's determination that summary disposition of a habeas petition is inappropriate "the judge shall order the respondent to file an answer or other pleading ... or to take such other action as the judge deems appropriate." In explaining the latter phrase the Advisory Committee observed, "This is designed to...

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