Kim v. Villalobos, No. 85-5996

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WALLACE, FARRIS and CANBY; CANBY
Citation799 F.2d 1317
PartiesJohn KIM, Plaintiff-Appellant, v. C.J. VILLALOBOS, Defendant-Appellee.
Decision Date02 June 1986
Docket NumberNo. 85-5996

Page 1317

799 F.2d 1317
John KIM, Plaintiff-Appellant,
v.
C.J. VILLALOBOS, Defendant-Appellee.
No. 85-5996.
United States Court of Appeals,
Ninth Circuit.
Submitted June 2, 1986. *
Decided Sept. 15, 1986.

Page 1318

Paul Anthony Stabile, Pasadena, Cal., for plaintiff-appellant.

Donald Roeschke, California Atty. Gen., Los Angeles, Cal., for defendant-appellee.

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

Before WALLACE, FARRIS and CANBY, Circuit Judges.

CANBY, Circuit Judge:

John Kim appeals the district court's dismissal of his petition for a writ of habeas corpus. The district court dismissed the petition on the ground that Kim failed to exhaust the available state judicial remedies. We find that Kim has fairly presented his federal claims to the Supreme Court of California, thereby satisfying the exhaustion requirement of 28 U.S.C. Sec. 2254. We therefore reverse the district court's judgment and remand the case for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Kim was originally convicted in the Superior Court for the County of Los Angeles of assault by means of force likely to produce great bodily injury, Cal. Penal Code Sec. 245(a), and of other criminal violations. Kim failed to file a timely notice of appeal, and the Court of Appeals of California denied his motion to file a late notice of appeal.

Kim's quest for collateral review of his conviction began with the filing of a petition for a writ of habeas corpus with the Superior Court. Kim requested habeas relief on the ground that his right to appeal had been violated. After this petition was denied, Kim petitioned the Court of Appeals of California for a writ of habeas corpus, alleging additional substantive and procedural violations. The Court of Appeals also denied Kim's petition.

On or about December 27, 1983, Kim filed his first petition for a writ of habeas corpus with the Supreme Court of California. Kim's petition presented fifteen grounds for habeas relief. The California Supreme Court summarily denied Kim's petition, citing In re Yurko, 10 Cal.3d 857, 866-67, 112 Cal.Rptr. 513, 519, 519 P.2d 561, 567 (1974), In re Swain, 34 Cal.2d 300, 304, 209 P.2d 793, 796 (1949), In re Lindley, 29 Cal.2d 709, 723, 177 P.2d 918, 928 (1947), and Cal. Rules of Court, rule 45(e).

On April 24, 1984, Kim filed his first federal petition for a writ of habeas corpus with the district court. The district court determined that six of Kim's nine claims had been dismissed by the California Supreme Court on procedural grounds. The district court thereupon dismissed Kim's entire petition on the ground that it failed to satisfy the requirement of total exhaustion. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

Kim then filed a second petition with the Supreme Court of California for a writ of habeas corpus. Kim's new petition was identical to his earlier one, but for the addition of exhibits relating to his unsuccessful attempt to obtain habeas relief in federal court. The California Supreme Court again summarily denied Kim's petition. This time the Court cited In re Miller, 17 Cal.2d 734, 112 P.2d 10 (1941).

Having been twice denied habeas relief by the California Supreme Court, Kim returned to the federal courts. Kim resubmitted his earlier petition, this time including documents from his prior state court proceedings. The district court found that the grounds alleged in Kim's petition were identical to those of his earlier petition. It therefore dismissed Kim's petition on the

Page 1319

same grounds--failure to exhaust state remedies. Kim now appeals.
EXHAUSTION OF STATE REMEDIES

We review de novo the denial of a petition for writ of habeas corpus. Roth v. United States Parole Commission, 724 F.2d 836, 839 (9th Cir.1984).

A state prisoner seeking federal habeas corpus review of his conviction ordinarily must first exhaust available state remedies. 28 U.S.C. Sec. 2254(b), (c); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The exhaustion requirement is not satisfied unless the federal claim has been "fairly presented" to the state courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971).

The state's contention that Kim failed to exhaust California's available judicial remedies is based on Harris v. Superior Court, 500 F.2d 1124 (9th Cir 1974) (en banc), cert. denied, 420 U.S. 973, 95 S.Ct. 1394, 43 L.Ed.2d 652 (1975). In Harris, this court stated,

If the denial of the habeas corpus petition includes a citation of an authority which indicates that the petition was procedurally deficient ..., then the available state remedies have not been exhausted as the California Supreme Court has not been given the required fair opportunity to correct the constitutional violation.

Id. at 1128.

The Supreme Court of California cited three cases and one rule in summarily denying Kim's first petition: In re Yurko, 10 Cal.3d 857, 866-67, 112 Cal.Rptr. 513, 519, 519 P.2d 561, 567 (1974); In re Lindley, 29 Cal.2d 709, 723, 177 P.2d 918, 928 (1947); In re Swain, 34 Cal.2d 300, 304, 209 P.2d 793, 796 (1949), and Cal.Rules of Court, rule 45(e). Yurko precludes review of a speedy trial contention when it was not raised on appeal or by pretrial motion. That defect cannot be cured; the State consequently concedes that Kim's state remedies have been...

To continue reading

Request your trial
183 practice notes
  • Roberts v. Warden, San Quentin State Prison, No. CIV S-93-0254 GEB DAD
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 1, 2012
    ...requires only that claims be alleged with as much particularity as is practicable under the circumstances. See Kim v. Villalobos, 799 F.2d 1317, 1320 (9th Cir. 1986). As noted, it appears that respondent misconstrues the purpose of the exhaustion requirement as explained under the above aut......
  • Peeler v. Foss, No. 2:15-cv-02582-JKS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 15, 2019
    ...petitioner may file a new petition curing the defect. See Gaston v. Palmer, 417 F.3d 1030, 1037 (9th Cir. 2005); see Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). There is no reason the result should be any different when the defect in the state petition is the failure to attach d......
  • Roberts v. Warden, San Quentin State Prison, No. CIV S-93-0254 GEB DAD
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 30, 2013
    ...requires only that claims be alleged with as much particularity as is practicable under the circumstances. See Kim v. Villalobos, 799 F.2d 1317, 1320 (9th Cir. 1986). As noted, it appears that respondent misconstrues the purpose of the exhaustion requirement as explained under the above aut......
  • Her v. Jacquez, 2: 09 - cv - 612 - JAM TJB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 15, 2011
    ...when it exists, can be cured in a renewed petition" and constitutes a denial of the petition on procedural grounds. See Kim v. Villalbos, 799 F.2d 1317, 1319 (9th Cir. 1986). However, a citation to Swain does not per se indicate that the a claim is unexhausted. See id. at 1319-20. Rather, t......
  • Request a trial to view additional results
183 cases
  • Roberts v. Warden, San Quentin State Prison, No. CIV S-93-0254 GEB DAD
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 1, 2012
    ...requires only that claims be alleged with as much particularity as is practicable under the circumstances. See Kim v. Villalobos, 799 F.2d 1317, 1320 (9th Cir. 1986). As noted, it appears that respondent misconstrues the purpose of the exhaustion requirement as explained under the above aut......
  • Peeler v. Foss, No. 2:15-cv-02582-JKS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 15, 2019
    ...petitioner may file a new petition curing the defect. See Gaston v. Palmer, 417 F.3d 1030, 1037 (9th Cir. 2005); see Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). There is no reason the result should be any different when the defect in the state petition is the failure to attach d......
  • Roberts v. Warden, San Quentin State Prison, No. CIV S-93-0254 GEB DAD
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 30, 2013
    ...requires only that claims be alleged with as much particularity as is practicable under the circumstances. See Kim v. Villalobos, 799 F.2d 1317, 1320 (9th Cir. 1986). As noted, it appears that respondent misconstrues the purpose of the exhaustion requirement as explained under the above aut......
  • Her v. Jacquez, 2: 09 - cv - 612 - JAM TJB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 15, 2011
    ...when it exists, can be cured in a renewed petition" and constitutes a denial of the petition on procedural grounds. See Kim v. Villalbos, 799 F.2d 1317, 1319 (9th Cir. 1986). However, a citation to Swain does not per se indicate that the a claim is unexhausted. See id. at 1319-20. Rather, t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT