James v. Borg, 92-56543

• Decision Date: 12 May 1994
• Docket Number: No. 92-56543,92-56543
• Citation: 24 F.3d 20
• Parties: Nathaniel JAMES, Petitioner-Appellant, v. Robert G. BORG, Warden; Attorney General of California, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 20

24 F.3d 20

Nathaniel JAMES, Petitioner-Appellant, v. Robert G. BORG, Warden; Attorney General of California Respondents-Appellees.

No. 92-56543.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 4, 1994.

Decided May 12, 1994.

William S. Harris, Stewart & Harris, Pasadena, CA, for petitioner-appellant.

Carol Frederick Jorstad, Deputy Atty. Gen., Los Angeles, CA, for respondents-appellees.

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

Before: HUG, WIGGINS, and NOONAN, Circuit Judges.

Opinion by Judge WIGGINS.

WIGGINS, Circuit Judge:

Nathaniel James is a state prisoner who petitions for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. He appeals from a district court's order denying his petition and dismissing it with prejudice. Petitioner challenges his state murder conviction primarily on the ground that his Sixth Amendment right to be informed of the nature and cause of the charge was violated. Petitioner also asserts that his Sixth Amendment right to receive effective assistance of counsel at trial was denied and that his Fifth Amendment right against self-incrimination was violated. He seeks a retrial. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.

I.

On December 4, 1981, petitioner cruised the Beverly Hills area in a stolen van, drinking alcohol, using drugs and stealing women's purses. The next day petitioner announced to his cohorts that he would show them "how to do a real robbery." Petitioner approached a parked car in which Lev and Rima Pikas were sitting. Petitioner was wearing a short-sleeved shirt. Pointing a gun at Lev Pikas, petitioner demanded money. He then shot both Lev and Rima Pikas. Lev Pikas gave petitioner two blood-stained $20 bills. Upon returning to the van, petitioner boasted to his cohorts that he had "shot the bitch in the temple." Petitioner then threw the gun out the van window; the gun was subsequently found by the police.

Within minutes after the shooting, the police stopped the van. Petitioner was the only person in the van wearing a short-sleeved shirt. The police found Rima Pikas's purse in the van. After petitioner's arrest, the police found two blood-stained bills inside his pocket. There was blood on petitioner's clothing. The blood on the bills and petitioner's clothing was Type A, the blood type of Lev Pikas. An eyewitness identified petitioner as the man who fired the gun. Rima Pikas died as a result of her injuries.

On February 5, 1982, an information was filed, alleging that petitioner committed a murder during the course of a robbery. Specifically, the information charged that appellant "did willfully and unlawfully and with malice aforethought murder Rima Pikas." The information alleged that petitioner had been armed and that he had personally used the firearm. The information also charged petitioner with murder, attempted murder, and two robberies. The information did not allege that petitioner had intent to kill Rima Pikas.

On July 5, 1983, petitioner's trial began in state court. The prosecution tried its case on a felony murder theory. After the defense rested, the prosecution requested and received a jury instruction which included intent to kill as an element of the felony-murder special circumstance charge. Appellant did not object. On September 19, 1983, the jury convicted petitioner of first degree murder. The jury found that: (1) petitioner was armed; (2) petitioner murdered Rima Pikas during the commission of a robbery; (3) petitioner was the actual killer; and (4) petitioner acted with the intent to kill. Petitioner was sentenced to life without possibility of parole.

On appeal, petitioner raised three claims. He argued that: (1) his Sixth Amendment right to be informed of the nature and cause of the charge was violated because he was not given notice that intent to kill was a special circumstance element of murder in the course of a robbery; (2) his Sixth Amendment right to receive effective assistance of counsel at trial was denied; and (3) his Fifth Amendment right against self-incrimination was violated because the prosecutor commented in closing argument on petitioner's failure to submit to a psychiatric interview. The California Court of Appeal rejected petitioner's claims and affirmed his conviction. Petitioner then filed a petition for review with the California Supreme Court, again raising a Sixth Amendment notice claim. This petition was denied on December 19, 1985. Several years later, petitioner filed a second petition for review with the California Supreme Court, asserting an ineffective assistance of trial counsel claim. This second petition was denied on March 27, 1991.

On June 12, 1991, petitioner filed pro se a habeas corpus petition in federal district court. He again raised the three claims he argued before the California Court of Appeal. On May 27, 1992, a magistrate judge issued a report and recommendation that the petition be denied and the action be dismissed with prejudice. First, the magistrate saw no violation of petitioner's Sixth Amendment right to be informed of the nature and cause of the charge on the ground that intent to kill had been omitted. Second, the magistrate found no ground for finding that trial counsel was ineffective. Finally, the magistrate found no violation of petitioner's Fifth Amendment right against self-incrimination. On June 30, 1993, the district court entered an order adopting the magistrate's report and recommendation.

On July 22, 1993, petitioner filed a timely notice of appeal. The Ninth Circuit issued a certificate of probable cause and appointed counsel for petitioner.

II.

A. Failure to Exhaust State Remedies

We review de novo the district court's denial of a writ of habeas corpus. Mikes v. Borg, 947 F.2d 353, 356 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 3055, 120 L.Ed.2d 921 (1992).

In general, a habeas petition should be dismissed if a petitioner has failed to exhaust state remedies as to even one claim. Rose v. Lundy, 455 U.S. 509, 513-20, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Mannes v. Gillespie, 967 F.2d 1310, 1316 n. 6 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 964, 122 L.Ed.2d 121 (1993); O'Bremski v. Maass, 915 F.2d 418, 421 (9th Cir.1990), cert. denied, 498 U.S. 1096, 111 S.Ct. 986, 112 L.Ed.2d 1070 (1991). To exhaust state remedies, petitioner must present each of his claims to the state's highest court. In turn, the state's highest court must have disposed of each claim on the merits. Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir.1979). A petitioner may, however, choose to strike any unexhausted claims and proceed on the exhausted ones. Rose v. Lundy, 455 U.S. at 530, 102 S.Ct. at 1209; Ostrosky v. Alaska, 913 F.2d 590, 593 n. 9 (9th Cir.1990); Neuschafer v. Whitley, 860 F.2d 1470, 1477 (9th Cir.1988), cert. denied sub nom. Demosthenes v. Neuschafer, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989).

In addition to his three primary claims discussed below, petitioner raises four other claims. ¹ Petitioner has not exhausted his state remedies as to these claims, however. (Specifically, petitioner never raised four of his claims before the California Supreme Court. Consequently, the California Supreme Court never reached the merits of these contentions.) Because exhaustion of state remedies is a prerequisite to federal habeas review, the appeal could be dismissed. Rose v. Lundy, 455 U.S. at 513-20, 102 S.Ct. at 1200-04; Mannes, 967 F.2d at 1316 n. 6.

We decline to dismiss the entire appeal, however. Although petitioner raised these four claims in his pro se opening brief, which is now lodged as an exhibit, petitioner's appointed counsel did not raise them in his opening brief. We therefore choose to infer that petitioner elected to strike these four claims. Rose v. Lundy, 455 U.S. at 530, 102 S.Ct. at 1209; Ostrosky, 913 F.2d at 593 n. 9; Neuschafer, 860 F.2d at 1477.

B. Sixth Amendment Right to Notice

We review de novo the district court's determination that an information filed against petitioner complied with constitutional requirements. Givens v. Housewright, 786 F.2d 1378, 1380 (9th Cir.1986) (granting habeas relief because the information failed to state special circumstances element of murder by torture).

The Sixth Amendment "guarantees a criminal defendant a fundamental right to be clearly informed of the nature and the cause of the accusation against him." Nevius v. Sumner, 852 F.2d 463, 471 (9th Cir.1988), cert. denied, 490 U.S. 1059, 109 S.Ct. 1972, 104 L.Ed.2d 441 (1989). To determine whether a defendant has received fair notice of the charges against him, the court looks first to the information. Lincoln v. Sunn, 807 F.2d 805, 812 (9th Cir.1987). The principal purpose of the information is to provide the defendant with a description of the charges against him in sufficient detail to enable him to prepare his defense. United The felony-murder special circumstance is applicable to a murder committed while the defendant was engaged in certain felonies, including robbery. Cal.Penal Code Sec. 190.2, subd. (a)(17)(i). The felony-murder special circumstance is generally similar to felony murder. 3 Witkin & Epstein, Cal.Criminal Law, Punishment for Crime, Sec. 1582 at 1886-1887. There are two twists. First, the felony-murder special circumstance requires that the defendant committed the murder in order to advance an independent felonious purpose. People v. Bonin, 47 Cal.3d 808, 850, 765 P.2d 460, 484, 254 Cal.Rptr. 298, 323 (1989), cert. denied, 494 U.S. 1039, 110 S.Ct. 1506, 108 L.Ed.2d 641 (1990).

States v. Lane, 765 F.2d 1376, 1380 (9th Cir.1985). An information is not constitutionally defective if it states "the elements of an offense charged with sufficient clarity to apprise a defendant of what to defend against." Miller v. Stagner, 757 F.2d 988, 994 (9th Cir.) (quoting Russell v. United States, 369 U.S. 749, 763-64, 82...