Kelly v. Small

• Decision Date: 27 August 2002
• Docket Number: No. 99-56673.,99-56673.
• Citation: 315 F.3d 1063
• Parties: Andreas KELLY, Petitioner-Appellant, v. Larry SMALL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

315 F.3d 1063

Andreas KELLY, Petitioner-Appellant, v. Larry SMALL, Warden, Respondent-Appellee.

No. 99-56673.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 10, 2002.

Opinion Filed August 27, 2002.

Amended January 14, 2003.

COPYRIGHT MATERIAL OMITTED

Wayne R. Young, Santa Monica, CA, for the petitioner-appellant.

Alan D. Tate, Deputy Attorney General, Los Angeles, CA, for the respondents-appellees.

Appeal from the United States District Court for the Central District of California; J. Spencer Letts, District Judge, Presiding. D.C. No. CV-98-07536-JSL.

Before: LAY,^* CANBY and PAEZ, Circuit Judges.

ORDER

The opinion filed August 27, 2002, and appearing at 300 F.3d 1159 (9th Cir.2002) is amended. The amended opinion is filed herewith.

Petitioner's motion to withdraw his motion to file a pro se petition for panel and en banc rehearing is granted.

The panel has voted unanimously to deny the respondent's petition for panel rehearing. Judge Paez has voted to deny respondent's petition for en banc rehearing, and Judges Lay and Canby so recommend. The full court has been advised of respondent's petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

Respondent's petition for panel rehearing and for rehearing en banc are denied. No further petitions for rehearing or rehearing en banc will be entertained.

OPINION

LAY, Circuit Judge:

Andreas J. Kelly was convicted in California state court of eight counts of first-degree residential robbery, one count of second-degree robbery, and two counts of kidnapping for robbery with enhancement for the use of a firearm and a knife. He was sentenced to state prison for two consecutive life terms plus an additional twelve years and four months. Petitioner appealed his conviction to the California Court of Appeal, Second Appellate District, Division Seven. In an unpublished opinion filed April 6, 1998, the Court of Appeals affirmed the judgment. In an order filed July 22, 1998, the California Supreme Court denied review. Kelly thereafter filed, under 28 U.S.C. § 2254, a petition for writ of habeas corpus in the United States District Court for the Central District of California. The state moved for summary dismissal on the ground that Petitioner had not exhausted his available state remedies. The case was assigned to a magistrate judge. The magistrate judge found that Petitioner had not exhausted five of his eight claims and that he could submit an amended petition deleting the unexhausted claims, but that his failure to do so would result in the dismissal of his petition without prejudice. The district court adopted the magistrate judge's findings and recommendations and dismissed the petition without prejudice. The district court denied a certificate of appealability. On March 24, 2000, this court granted Petitioner's renewed request for a certificate of appealability. We reverse.

A state prisoner is required to exhaust all available state court remedies before a federal court may grant him habeas relief. O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Keeney v. Tamayo-Reyes, 504 U.S. 1, 9, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (citing 28 U.S.C. § 2254(b)). Exhaustion requires the state prisoner give the state courts a "fair opportunity to act" on each of his claims before he presents those claims in a federal habeas petition. O'Sullivan, 526 U.S. at 844, 119 S.Ct. 1728; see also Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Lyons v. Crawford, 232 F.3d 666, 668 (2000), as modified by 247 F.3d 904 (9th Cir.2001). The state prisoner must describe in the state proceedings both the operative facts and the federal legal theory on which his claim is based so that the state courts have a "`fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (citing Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)); see also Lyons, 232 F.3d at 670 (holding that a petitioner must characterize the claims raised in state proceedings "specifically as federal claims") (emphasis in original). In Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the Court held that a "mixed" federal habeas petition — one that presents some exhausted and some unexhausted state claims — must be dismissed without prejudice. Id. at 520-22, 102 S.Ct. 1198.

In his federal habeas petition, Petitioner raises eight enumerated claims for relief. The parties agree that the first, third, and eighth federal claims were fully exhausted before the state court.¹ We need only consider whether the district court erred by holding the remaining federal claims were unexhausted. The district court held that Petitioner's remaining five claims suffered from a lack of development such that the California Supreme Court could not have considered them. On appeal, Petitioner maintains that he presented an exhausted petition. We address each disputed claim in turn.

Three of the claims the district court found unexhausted were, in fact, clearly exhausted before the California Supreme Court. In his fourth enumerated federal claim, Petitioner objected that the admission of certain hearsay statements violated his Sixth Amendment right of confrontation. In his sixth claim, he objected that the admission of uncharged crimes evidence and misdemeanor convictions violated his Fifth and Fourteenth Amendment due process rights. In his seventh claim, he objected that various instructions by the trial court violated his Fifth, Sixth, and Fourteenth Amendment rights. The district court found that Petitioner's summary treatment of these issues before the California Supreme Court was insufficient to satisfy the O'Sullivan standard. The petitioner presented his claims to the California Supreme Court merely in the form of the stated question or issue, without further discussion. Assuming the California Supreme Court only had before it Petitioner's brief, the district court's conclusion would not be entirely unreasonable.

The California Supreme Court had before it, however, more than Petitioner's brief. It also had the unpublished opinion of the California Court of Appeal. In Reese v. Baldwin, 282 F.3d 1184 (9th Cir. 2002), we held that — although a petitioner must explicitly present his federal claims to the highest state court — a petitioner does so where the petitioner explicitly raises the federal claims before a lower court and that court addresses the questions in its decision in a manner sufficient to put a reviewing court on notice of the specific federal claims. Id. at 1193. This is sufficient, we held, because an appellate court can be expected to be familiar with the decision upon which it is passing judgment. Id. (concluding that "it is appropriate to presume" that a state supreme court will read the substantive decision under review). Presuming the California Supreme Court consulted the opinion of the state appellate court in reaching its own decision, the question we must consider is whether the opinion of the state court of appeals — combined with the questions Petitioner presented to the California Supreme Court — gave that court a "`fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Harless, 459 U.S. at 6, 103 S.Ct. 276.

The California Court of Appeals set forth the relevant facts and legal analysis for the claim arising from the asserted admission of hearsay evidence over the course of six pages. It devoted nearly ten pages to the claims concerning the admission of uncharged crimes and misdemeanor convictions. It spent over seven pages addressing the disputed comments by the trial court. Petitioner then set forth the constitutional bases for his claims in the questions presented in his petition to the California Supreme Court. We conclude these combined submissions should have led the district court to hold that these three federal claims had been exhausted before the state courts.

A closer question arises when we consider Petitioner's fifth enumerated federal claim, whether Petitioner's trial counsel was guilty of ineffective assistance in violation of his Sixth Amendment rights. In his federal petition, Kelly cited four "failures" as grounds for a finding of ineffective assistance: trial counsel (1) failed to object to the prosecutor's testimony, (2) failed to object to the several instances of alleged prosecutorial misconduct, (3) failed to object to the introduction of other crimes evidence, and (4) failed to file a motion to recuse the prosecutor based on alleged misconduct, conflict of interest, and personal animus. The California Court of Appeals devoted over ten pages to Petitioner's assertions of ineffective assistance of counsel. This discussion, however, addressed only the first three of the above alleged failures of trial counsel. For the claims arising from counsel's alleged failure to object to prosecutorial misconduct and the introduction of evidence of uncharged misconduct, the court of appeals opinion sets forth sufficient facts and federal constitutional analysis for those claims to be considered exhausted. To the extent the court considered the prosecutor's testimony, however, it limited its consideration to a specific portion of that testimony Petitioner characterized as a prejudicial reference to his guilt. The court did not discuss Petitioner's current federal claim that the entire testimony violated his rights. Likewise, the court of appeals did not consider at all Petitioner's claim that counsel was ineffective for failing to file a motion to recuse.

Petitioner's failure to develop the argument that his Sixth Amendment rights were violated by counsel's failure to object to the entirety of the prosecutor's testimony does not require...