Tamapua v. Shimoda
| Decision Date | 15 April 1986 |
| Docket Number | No. 85-2661,85-2661 |
| Citation | 796 F.2d 261 |
| Parties | Ionatana TAMAPUA, Petitioner-Appellant, v. Edwin SHIMODA and the Attorney General of the State of Hawaii, Respondents- Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Earle A. Partington, Honolulu, Hawaii, for petitioner-appellant.
Peter M. Wilkens, Honolulu, Hawaii, for respondents-appellees.
Appeal from United States District Court for the District of Hawaii.
Before WALLACE, HUG and KOZINSKI, Circuit Judges.
We review the district court's denial of a petition for a writ of habeas corpus filed by a state prisoner. Because we find that the conviction in this unusual case is unsupported by the evidence, we reverse.
Ionatana Tamapua was indicted by a Hawaii grand jury on the charge of theft in the first degree. The indictment alleged that Tamapua "did obtain property, to wit, money and a chain, from the person of Dinasa Puaala, with intent to deprive the said Dinasa Puaala of the property, thereby committing the offense of Theft in the First Degree...." Tamapua unsuccessfully moved to dismiss the indictment on the ground that it failed to state an offense because it did not allege that he obtained the property without authorization. In lieu of trial, the parties then stipulated to the factual allegations contained in the indictment but only with regard to the chain. The other charge was dropped. Based on the stipulation, the court found Tamapua guilty and imposed a five year sentence to run concurrently with a sentence he was already serving.
Tamapua appealed to the Hawaii Supreme Court arguing that the indictment did not charge that he obtained the chain without authorization, an essential element of the crime of first degree theft under Hawaii law, and therefore his conviction was based on insufficient evidence. The Hawaii Supreme Court disagreed, and found the indictment sufficient. Tamapua then filed a motion for reconsideration alleging that the Hawaii Supreme Court misunderstood his argument, which was that his conviction was based on insufficient evidence. This motion was denied.
Tamapua then filed a petition for a writ of habeas corpus in the United States District Court for the District of Hawaii. He alleged that he was denied due process because he was convicted of an act that was not a crime. The district court in an unreported order filed August 30, 1985, denied the petition holding that Tamapua had not exhausted his state remedies and that there was an adequate and independent state law basis for the conviction. Tamapua filed a timely appeal.
Tamapua assails both parts of the district court's decision, arguing that he has exhausted his state remedies and that his conviction violates due process.
While a state prisoner must first exhaust his state remedies, 28 U.S.C. Sec. 2254(b), Lindquist v. Gardner, 770 F.2d 876, 877 (9th Cir.1985), the exhaustion requirement is satisfied once a claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.1985). A claim is fairly presented if the petitioner has described the operative facts and legal theory on which his claim is based. Picard v. Connor, 404 U.S. at 277-78, 92 S.Ct. at 513. A habeas petitioner may, however, reformulate somewhat the claims made in state court; exhaustion requires only that the substance of the federal claim be fairly presented. Id. at 278, 92 S.Ct. at 513.
Before the state courts Tamapua argued persistently that the indictment and evidence were insufficient and that he was convicted for an act that was not a crime. Tamapua makes essentially the same arguments before us, but he now labels them as violations of due process. While the Supreme Court has ruled that "[i]t is not enough that all facts necessary to support the federal claim were before the state courts, ... or that a somewhat similar statelaw claim was made," Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982), we conclude that Tamapua's state claims were sufficient to satisfy the "fair presentation" requirement. Tamapua's primary contention in the state court proceedings was that his conviction was based on insufficient evidence. Sufficiency of evidence to convict is a fundamental concern of the due process clause. See in re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Thompson v. Louisville 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). In Tamapua's reply brief to the state supreme court, he correctly cited State v. Lima, 64 Haw. 470, 474, 643 P.2d 536, 539 (1982), for the proposition that "[i]t is well established, as a precept of constitutional as well as statutory law, that an accused in a criminal case can only be convicted upon proof by the prosecution of every element of the crime charged beyond a reasonable doubt." (Emphasis added.)
Although Tamapua did not invoke the talismanic phrase "due process of law" in the state proceedings, we have held that a state prisoner will not be denied access to the federal courts because he failed to cite "book and verse on the federal constitution." Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958), quoted with approval in Picard v. Connor, 404 U.S. at 278, 92 S.Ct. at 513. On a careful examination of the record, we conclude that the Hawaii Supreme Court had a full and fair opportunity to address the substance of Tamapua's claims. He has therefore exhausted his state remedies and we must proceed to consider his contentions on the merits.
Tamapua's indictment charged that he "did obtain property, to wit ... a chain, from the person of Dinasa Puaala, with intent to deprive the said Dinasa Puaala of the property ..." (emphasis added). The relevant statute, however, defines theft as "[o]btain[ing], or exert[ing] unauthorized control over ... the property of another with intent to deprive him of the property." Hawaii Rev.Stat. Sec. 708-830(1) (emphasis added). There is obviously a material difference between the two formulations. While the statute makes unlawful exerting unauthorized control over the property of the victim, the indictment can reasonably be read as...
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