885 F. 2d 875 - Mullin v. Estelle

MEMORANDUM**

Herbert W. Mullin (Mullin), a state prisoner, appeals from the denial of his petition for a writ of habeas corpus without prejudice. The district court concluded that Mullin had failed to exhaust all of his available state court remedies.

* On August 8, 1973, Mullin was convicted of ten counts of murder in the Santa Cruz Superior Court. Mullin appealed. The California Court of Appeals dismissed the appeal because Mullin failed to file a brief.

On December 11, 1973, Mullin was convicted in Santa Clara Superior Court of one count of second degree murder. Mullin filed a notice of appeal December 21, 1973. On March 29, 1974, Mullin requested that his appeal be dismissed. The California Court of Appeals dismissed the appeal on May 21, 1974.

On November 16, 1982, Mullin filed a document designated as a petition for Writ of Mandamus in the Superior Court of the State of California for the County of San Luis Obispo. The San Luis Obispo Superior Court treated the pleading as a petition for a Writ of Habeas Corpus. In his petition, Mullin sought the following relief: (1) an order commanding the Board of Prison Terms to set a parole date or, alternatively, to overrule the denial of parole consideration for three years on the ground that parole regulation P.C. 3041.5(b)(2) constitutes an improper ex post facto law; (2) a hearing on whether Mullin should be allowed to inspect a confidential letter deleted from his Central File; (3) an order directing the Attorney General to schedule lie detector examinations and meetings with three psychic crime solvers; and (4) an order to the Santa Cruz and Santa Clara trial courts directing retrials. In support of his request that his convictions be set aside, Mullin submitted copies of letters he had submitted to the Board of Prison Terms. Mullin's petition contained the following assertion: "Petitioner believes that those seven letters (pages) as well as the confusion surrounding the pleas entered at the Santa Cruz and Santa Clara Trials ... are sufficient reason for Your Honor to use his powers and direct the appropriate Court to schedule the Petitioned Retrial." In one of the letters submitted in support of his petition, Mullin alleged that his trial counsel "submitted embarrassing and inappropriate evidence," and "his efforts were incompetent and his presentations were immaterial and irrelevant."

The San Luis Obispo Superior Court denied Mullin's request for a retrial. The court reasoned that Mullin "has failed to set forth sufficient facts warranting exercise of this court's habeas corpus jurisdiction in accordance with the pleading requirements of In re Swain, (1949) 34 Cal.2d 300." In addition, the superior court ruled that "any requests for relief going to the validity of his convictions should be directed to [Mullin's] trial court in each instance. (See Griggs v. Superior Court (1976) 16 Cal.3d 341.)"

Mullin did not appeal from the denial of his petition. Instead, he filed the same petition, without amendment, in the California Court of Appeals and in the California Supreme Court. He failed to set forth facts to support his conclusion that his attorney was incompetent in that he submitted embarrassing, inappropriate, immaterial, and irrelevant evidence. On January 25, 1983, the California Court of Appeals summarily denied Mullin's petition without opinion. On March 16, 1983, the California Supreme Court denied Mullin's petition without opinion.

On December 16, 1983, Mullin filed a petition pursuant to 28 U.S.C. Sec. 2254 in the Central District of California. Mullin alleged that: (1) he was represented by incompetent counsel; (2) he was coerced by the Santa Cruz trial judge into pleading not guilty by reason of insanity; (3) he was denied a change of venue; and (4) he was not allowed to call certain witnesses in presenting his defense.

The district court for the Central District of California transferred this matter to the Northern District of California. On April 30, 1986 the district court issued an order dismissing Mullin's section 2254 petition because Mullin failed to exhaust his state court remedies. Upon receiving a letter from Mullin alleging that his state court remedies had been exhausted, the court reconsidered its earlier action and vacated the dismissal of the section 2254 petition. On April 29, 1987, the district court denied Mullin's section 2254 petition without prejudice for failure to exhaust state remedies. Mullin has filed this appeal from the denial of his section 2254 petition without prejudice.

Mullin contends that the district court's conclusion that he failed to exhaust his state remedies is "illogical and inappropriate." Appellant's Opening Brief, page 2. He argues that "[t]he petitions and exhibits that Mullin presented in each court were philosophically the same." Id. Mullin has failed to discuss the district court's alternative holding that he failed to exhaust his state remedy because he did not avail himself of the opportunity to file an amended petition for a writ of habeas corpus in state court that alleged his federal constitutional claim with particularity as required under California law.

We must decide whether the record shows that Mullin's section 2254 petition contained unexhausted claims. We review a denial of a petition for a writ of habeas corpus independently and without deference to the district court's ruling. Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir.1986).

A federal habeas corpus action must be dismissed if the petitioner has failed to exhaust available state court remedies as to each claim raised in the petition. 28 U.S.C. Sec. 2254(b); Rose v. Lundy, 455 U.S. 509, 522 (1982). "A petitioner may satisfy the exhaustion requirement either by providing the highest state court with an opportunity to rule on the merits of his federal claims or by showing that at the time petitioner filed a habeas petition in federal court, he had no state remedies available and had not deliberately bypassed them." McQuown v. McCartney, 795 F.2d 807, 809 (9th Cir.1986).

The requirement that state remedies be exhausted is satisfied if "the federal claim has been 'fairly presented' to the state courts." See Kim, 799 F.2d at 1319 (citation omitted) (where petitioner has twice fairly presented his claims to the California Supreme Court, habeas corpus petition would not be dismissed for failure to exhaust remedies). In addition, a federal constitutional claim has not been fairly presented if a state's highest court declines to hear it on procedural grounds but alternative avenues for review under state law are still available. Sweet v. Cupp, 640 F.2d 233, 237-38 (9th Cir.1981).

Under California law, a petition for a writ of habeas corpus must allege facts, not conclusions. People v. Karis, 46 Cal.3d 612, 656, 758 P.2d 1189, 250 Cal.Rptr. 659 (1988), Lincoln v. Fox, 168 Cal.App.2d 31, 335 P.2d 161 (1959). "An appellate court is entitled to and does 'require of a convicted defendant that he allege with particularity the facts upon which he would have a final judgment overturned.' " Oppenheimer v. Ashburn, 173 Cal.App.2d 624, 628, 343 P.2d 931 (1959) (citation omitted). Since the California courts that reviewed Mullin's state petition did not rule on the merits of any of his federal constitutional claims he is not precluded from again seeking relief in state court by filing a properly pleaded petition for a writ of habeas corpus. In re Hop, 29 Cal.3d 82, 95, 623 P.2d 282, 171 Cal.Rptr. 721 (1981).

Mullin's state petition alleged conclusions, not particular facts showing incompetency of counsel. In denying Mullin's state petition, the San Luis Obispo Superior Court clearly indicated to him that he could file properly pleaded petitions challenging his convictions before the Santa Cruz and Santa Barbara trial courts. Mullin did not do so. Mullin has not fairly presented his claim of incompetency of counsel to a California court in a petition that complies with that state's pleading requirements. By filing a section 2254 petition in the district court, Mullin has attempted to bypass the remedies available under California law to a petitioner who pleads incompetency of counsel with particularity. McQuown v. McCartney, 795 F.2d at 809 (section 2254 relief is not available to a petitioner who has deliberately bypassed available state remedies).

The district court also concluded that the claims of incompetency of counsel set forth in Mullin's section 2254 were not substantially equivalent to those presented in his state petition. We agree.

The exhaustion requirement is not satisfied unless the records show that the claims stated in the section 2254 petition are the substantial equivalent of the contentions properly presented to the state court. Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th Cir.1982), citing Schiers v. People, 333 F.2d 173, 174 (9th Cir.1964).

The record supports the district court's finding that Mullin raised substantially different claims of ineffective assistance of counsel in the district court than those presented to the state court. In his state petition, Mullin alleged that his counsel submitted evidence that was inappropriate, embarrassing, irrelevant, and immaterial. In his section 2254 petition, Mullin raises new contentions concerning the failure of his attorney to obtain appropriate housing for him during the trial, failure to move for a change of venue, and the entry of an improper plea of not guilty by reason of insanity. Because Mullin's claims of ineffective assistance of counsel in his state habeas corpus petition are not substantially equivalent to those set forth in his section 2254 petition, the record supports the district court's conclusion that the additional contentions must first be presented to the state court.

AFFIRMED.