Jaffe v. Brown, C 05-4439 PJH
| Decision Date | 27 June 2014 |
| Docket Number | No. C 05-4439 PJH,C 05-4439 PJH |
| Court | U.S. District Court — Northern District of California |
| Parties | STEVEN JAFFE, Petitioner, v. EDMUND G. BROWN, Jr., Governor; MATTHEW KRAMER, Warden, Respondents. |
Before the court is the motion of respondent Matthew Kramer to dismiss the second amended petition for writ of habeas corpus. Petitioner Steven Jaffe has filed an opposition and respondent has replied. The court determines that the matter is suitable for decision without oral argument. Having considered the relevant legal authority and the parties' papers, the court DENIES IN PART AND GRANTS IN PART the motion to dismiss.
In 2003, a jury in Alameda County Superior Court convicted petitioner of seven counts, including five counts arising from his simultaneous possession of methamphetamine, cocaine, a nine-millimeter handgun, a .25 caliber handgun, and ammunition. Petitioner was also convicted of possessing cocaine while armed with a loaded, operable nine-millimeter handgun and a loaded, operable .25 caliber handgun. The trial court sentenced petitioner to a total term of nine years and four months in state prison.
Petitioner appealed the state court judgment and concurrently filed a habeas petition in the court of appeal. The court of appeal vacated the conviction for the count of simple possession of cocaine on the grounds that it was a lesser-included offense of possessing cocaine while armed with a loaded, operable handgun, and otherwise affirmed the judgment. The court of appeal summarily denied the petition for a writ of habeas corpus.Petitioner then filed two petitions for review in the California Supreme Court, one seeking review of the court of appeal's decision on direct appeal and one seeking review of the court of appeal's summary denial of the habeas petition. The California Supreme Court initially granted review of the court of appeal's decision on direct appeal, but subsequently dismissed its decision granting review on September 7, 2005. The California Supreme Court also summarily denied review of the habeas petition.
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, which the court denied by order entered March 30, 2009. On July 24, 2009, the court denied Jaffe's request for a certificate of appealability ("COA").
Jaffe appealed, and on November 17, 2010, the United States Court of Appeals for the Ninth Circuit granted a COA on four issues, including a Confrontation Clause challenge to the admission of Officer Miller's preliminary hearing testimony, which was not addressed in the order to show cause, in the March 30, 2009 order denying the habeas petition, or in the state court petitions that preceded this federal action. On appeal, Jaffe elected not to pursue one of the issues certified for appeal, namely, whether the evidence was sufficient to sustain his convictions for possession of cocaine while armed with an operable handgun, including the related claims of prosecutorial misconduct and ineffective assistance of counsel. By memorandum disposition entered April 4, 2012, the court of appeals affirmed the denial of habeas relief on the two remaining issues that had been addressed by this court in its March 30, 2009 order, that is, whether the prosecutor's failure to disclose evidence prior to the preliminary hearing regarding witness Miller violated Jaffe's due process rights under Brady v. Maryland, 373 U.S. 83 (1963), and whether trial counsel rendered ineffective assistance by failing to object to the prosecutor's misstatements of the law.
As to the fourth issue certified for appeal, the Ninth Circuit perceived a Confrontation Clause claim in Jaffe's November 1, 2005 petition that was not addressed by this court, and concluded that although the claim was not "fairly presented" to the state courts and it was not entirely clear that Jaffe "raised" such a claim before this court, it was nevertheless"sufficiently argued" in the papers before this court to warrant further proceedings. The Ninth Circuit further suggested that it found the Confrontation Clause claim to be potentially meritorious, noting that it was "exceedingly troubled by Confrontation Clause implications that arise from the admission of [Officer David] Miller's preliminary hearing testimony at trial," but that it was unable to reach the merits of the claim because Jaffe had not exhausted it before the state appellate courts. While concluding that the claim was not exhausted, the Ninth Circuit remanded the matter for this court to "determine in the first instance whether any California procedure remains available to Jaffe for raising [the unexhausted Confrontation Clause claim]," and if so to "exercise its discretion to determine whether Jaffe's petition should be stayed pursuant to either of the procedures outlined in King [v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009)]."
On remand, the court dismissed the Confrontation Clause claim identified by the Ninth Circuit, granted petitioner's motion to stay the petition pending state court proceedings to attempt to exhaust the Confrontation Clause claim, and ordered petitioner to return to this court to amend the petition within 30 days after the state courts had completed their review. Doc. no. 73. Petitioner's exhaustion effort took the form of a motion to recall the remittitur. After the court of appeal summarily denied the motion to recall the remittitur on June 12, 2013, and the California Supreme Court denied a petition for review on October 2, 2013, petitioner filed an amended petition on October 25, 2013, which alleged a Confrontation Clause claim.
After the court issued an order to show cause why the first amended petition should not be granted, petitioner filed a motion for leave to file a second amended petition to add a claim for ineffective assistance of appellate counsel, which was opposed by respondent. The court granted leave to amend and set filing deadlines for respondent to answer or otherwise respond to the second amended petition. Respondent filed the instant motion to dismiss on February 10, 2014. The motion is fully briefed and ripe for decision.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), to seek federal habeas relief, a state prisoner ordinarily must have "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). See Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Petitioner has the burden of pleading exhaustion in his habeas petition. See Cartwright v. Cupp, 650 F. 2d 1103, 1104 (9th Cir. 1981). The exhaustion requirement is satisfied only if (1) the federal claim has been fully and fairly presented to the state courts, or (2) no state remedy remains available. See Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (citing Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996)).
A petitioner fully and fairly presents a claim to the state courts, Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009) (citations omitted).
Respondent contends that petitioner's motion to recall the remittitur did not serve to exhaust state remedies for either of his claims alleging violation of the Confrontation Clause and ineffective assistance of appellate counsel. Respondent argues that once a remittitur issues, the jurisdiction of the appellate court ceases, and jurisdiction is revested in the trial court. But because petitioner's motion to recall the remittitur was denied without comment by the court of appeal, respondent argues that the appellate court never recaptured jurisdiction over petitioner's direct appeal, and did not consider any substantive claim that he tried to present. Mot. at 3. Similarly, respondent argues that the California Supreme Court's denial of the petition for review, from the denial of petitioner's motion to recall remittitur, did not effect the consideration of any substantive claim on the merits.
Respondent argues that, under California law, once a remittitur issues, the jurisdiction of the appellate court ceases and jurisdiction is revested in the trial court. Mot. at 3 (citations omitted). Because petitioner's motion to recall the remittitur was denied without comment by the court of appeal, respondent contends that the court of appeal did not recapture jurisdiction over petitioner's direct appeal and therefore did not consider the merits of any substantive claim to effect exhaustion. Mot. at 3. Petitioner cites state law authority recognizing, however, that the court of appeal has jurisdiction to determine whether there are grounds to recall the remittitur:
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