Hunter v. Aispuro

• Decision Date: 31 December 1992
• Docket Number: No. 90-16398,90-16398
• Citation: 982 F.2d 344
• Parties: Joseph Scott HUNTER, a/k/a Raymond C. Dirker, Petitioner-Appellant, v. Bernie AISPURO, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 344

982 F.2d 344

Joseph Scott HUNTER, a/k/a Raymond C. Dirker, Petitioner-Appellant, v. Bernie AISPURO, Warden, Respondent-Appellee.

No. 90-16398.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 9, 1991.

Opinion Filed March 12, 1992.

Opinion Withdrawn Oct. 29, 1992.

Decided Dec. 31, 1992.

Meredith J. Watts, San Francisco, CA, for petitioner-appellant.

Christopher J. Wei, Deputy Atty. Gen., San Francisco, CA, for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: CANBY and KOZINSKI, Circuit Judges, and NIELSEN, District Judge. ^*

WM. FREMMING NIELSEN, District Judge:

In an order filed on October 29, 1992, we granted appellant's petition for rehearing and withdrew our prior opinion. We now file this substitute opinion.

Joseph Scott Hunter appeals the denial of his petition for a writ of habeas corpus. He contends that the district court erroneously relied on the harmless error doctrine when rejecting his due process challenge to the state-imposed sentence. We affirm.

I. BACKGROUND AND PROCEDURAL HISTORY

Joseph Scott Hunter was indicted on eight counts for sexual offenses; three of the counts charged Hunter with committing forcible oral copulation. These three charges were based on incidents with two minors, Lorie D., age 12, and Michelle L., age 14.

At trial, both girls testified about the incident while Hunter asserted an alibi defense. The girls testified that after they accepted a ride with Hunter, he pulled out a gun which, unbeknownst to the girls, was unloaded. Hunter pointed the gun at Michelle's head and told her to do what he said and she would not get hurt. Hunter told the girls that earlier that day he had robbed a bank, had been wounded, and was not afraid to use the gun. Later, Hunter took some bullets out of his pocket, loaded the gun, put it under the driver's seat, and told the girls it would remain there.

The jury found him guilty on seven counts, including the three counts of committing forcible oral copulation, under California State Penal Code 288a(c). The jury specifically found that Hunter did not use a deadly and dangerous weapon. During deliberations, the jury required further instructions regarding the meaning of deadly and dangerous weapon.

In addition to the normal sentence under the penal code, Hunter was sentenced to consecutive terms of seven years on each of these counts via a sentencing statute, California State Penal Code section 667.6(c). At the time Hunter committed the acts in question section 288a(c) of the Penal Code defined forcible oral copulation as committing the act "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury"; while section 667.6(c) provided for additional consecutive sentences if the crimes were committed "by force, violence, duress, menace, or threat of great bodily harm." ¹

Hunter appealed his conviction and sentence on three separate occasions yet never raised the question of whether the linguistic discrepancies between California Penal Code sections 667.6(c) and 288a(c) denied him due process. The issue was first raised in his state petitions for a writ of habeas corpus. The petitions were denied without comment by both the California Court of Appeal and Supreme Court.

II. DISCUSSION

A. STANDARD OF REVIEW

This court reviews de novo a district court's decision on a petition for writ of habeas corpus. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. den., 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987).

B. PROCEDURAL DEFAULT

The government contends that Hunter's argument is procedurally barred from federal habeas review because he did not raise the issue properly on direct appeal. We disagree.

The government relies on the recent United States Supreme Court decision in Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Prior to Coleman, the standard was that enunciated in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), wherein the Court extended a presumption afforded direct appeal criminal cases to habeas corpus appeals. The presumption arises when there are two possible grounds for a state court's denial of habeas relief, one a federal question and the other an independent and adequate state procedural bar, and the order denying habeas relief does not clearly and expressly state that the state procedural bar is the basis of the denial. The Harris Court held that a federal court reviewing the state court's denial of habeas relief will presume the denial was based on the federal question absent a clear statement to the contrary. Id. at 265, 109 S.Ct. at 1044. Coleman reexamined Harris and explained that "[a] predicate to the application of the Harris presumption is that the decision of the last state court ... must fairly appear to rest primarily on federal law or to be interwoven with federal law." Coleman, --- U.S. at ----, 111 S.Ct. at 2557.

In Coleman, the petitioner had filed a petition for a writ of habeas corpus in state court raising federal constitutional claims that he had not raised on direct appeal. The state court ruled against him on all claims. Coleman appealed but was three days late in filing his notice of appeal. The state filed a motion to dismiss the appeal based on the late filing, and the state supreme court granted the motion and dismissed the appeal virtually without comment. Id., --- U.S. at ---- - ----, 111 S.Ct. at 2552-53. In holding that the state supreme court's dismissal did not fairly appear to rest primarily on federal law or to be interwoven with federal law, the United States Supreme Court noted that:

The Virginia Supreme Court stated plainly that it was granting the Commonwealth's motion to dismiss the petition for appeal. That motion was based solely on Coleman's failure to meet the Supreme Court's time requirements. There is no mention of federal law in the Virginia Supreme Court's three-sentence dismissal order. It "fairly appears" to rest primarily on state law.

Id., --- U.S. at ----, 111 S.Ct. at 2559.

Here, Hunter did not raise his federal constitutional claims on direct appeal, but raised them in an original habeas petition filed in the California Court of Appeal. The state filed an opposition, arguing both the merits and invoking the rule, which exists in California as elsewhere, that failure to raise an issue on direct appeal amounts to a waiver thereof. See In re Sterling, 63 Cal.2d 486, 488, 407 P.2d 5, 7, 47 Cal.Rptr. 205, 207 (1966). The state court of appeal stated only: "The petition for writ of habeas corpus is denied." Hunter then raised his federal claims in an original habeas petition filed in the California Supreme Court. The state supreme court similarly stated: "Petition for writ of habeas corpus DENIED."

The state courts' terse dismissals of the habeas petitions do not disclose whether they were based on state or federal law. Certainly the pro forma orders do not "fairly appear[ ] to rest primarily on federal law, or to be interwoven with the federal law." Coleman, --- U.S. at ----, 111 S.Ct. at 2557 (quoting Michigan v. Long, 463 U.S. 1032, 1040, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983)). Therefore, the necessary federal law predicate is missing and the Harris presumption of a reviewable federal issue does not apply.

We also are unable to employ the presumption set forth in Ylst v. Nunnemaker, --- U.S. ----, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). There the Court held that "where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim [are presumed to] rest upon the same ground." Id., --- U.S. at ----, 111 S.Ct. at 2594. Here, Hunter can point to no reasoned decision rejecting the federal claim that he pursues in this court.

The unavailability of the Harris v. Reed or Ylst v. Nunnemaker presumption does not end our inquiry, however. Absent a presumption, "federal habeas courts must ascertain for themselves if the petitioner is in custody pursuant to a state court judgment that rests on independent and adequate state grounds." Coleman, --- U.S. at ----, 111 S.Ct. at 2558; see also id., --- U.S. at ----, 111 S.Ct. at 2559 ("It remains the duty of the federal courts ... to determine the scope of the relevant state court judgment."); Ylst, --- U.S. at ----, 111 S.Ct. at 2594 (Harris presumption does not apply to an unexplained state court order; nevertheless, federal court in habeas proceedings must determine the basis for the order); Harris v. Reed, 489 U.S. at 261-62, 109 S.Ct. at 1042 ("the mere fact that a federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent this Court from reaching the federal claim: '[T]he state court must actually have relied on the procedural bar as an independent basis for its disposition of the case.' ") (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985)). Accordingly, we must determine whether the California Supreme Court actually relied on the procedural bar in denying Hunter's habeas petition.

The United States Supreme Court has acknowledged that discerning the basis of an unexplained state court order is not an easy task. Ylst, --- U.S. at ----, 111 S.Ct. at 2594. The Court noted that:

In Coleman itself, although the order was unexplained, the nature of the disposition ("dismissed" rather than "denied") and surrounding circumstances (in particular the fact that the state had rested its argument entirely upon a procedural bar), indicated that the basis was procedural default.

Id.; see also Coleman, --- U.S. at ----, 111 S.Ct. at 2559. Here, no such clues exist regarding the basis of the California Supreme Court's order denying Hunter's petition; the court "denied" Hunter's petition, and the state in its opposition argued both the merits and the procedural bar.

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