Free Motion to Dismiss - District Court of California - California

Case 3:07-cv-02197-BTM-NLS

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GARY W. SCHONS Senior Assistant Attorney General 4 DANIEL ROGERS Deputy Attorney General 5 MATTHEW MULFORD, State Bar No. 184000 Deputy Attorney General 110 West A Street, Suite 1100 6 San Diego, CA 92101 P.O. Box 85266 7 San Diego, CA 92186-5266 Telephone: (619) 645-2227 8 Fax: (619) 645-2271 Email: [email protected] 9 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. JAMES E. TILTON, Secretary, Respondent. CARREA CHRISTOPHER, Jr., 07cv2197 JLS (NLS) Petitioner, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PETITION IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GARY W. SCHONS Senior Assistant Attorney General 4 DANIEL ROGERS Deputy Attorney General 5 MATTHEW MULFORD, State Bar No. 184000 Deputy Attorney General 110 West A Street, Suite 1100 6 San Diego, CA 92101 P.O. Box 85266 7 San Diego, CA 92186-5266 Telephone: (619) 645-2227 8 Fax: (619) 645-2271 Email: [email protected] 9 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 20 Christopher currently has appointed appellate counsel in state court, who is representing v. JAMES E. TILTON, Secretary, Respondent. CARREA CHRISTOPHER, Jr., Petitioner, 07cv2197 JLS (NLS) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PETITION IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

21 him in an ongoing appeal from his July 20, 2007, criminal conviction. His efforts to seek 22 interlocutory and extraordinary relief from the California courts did not properly exhaust his claim. 23 His Petition should be dismissed without prejudice. 24 Procedural History 25 According to Christopher's pleading, on July 20, 2007, he received a seven-year sentence

26 after his conviction by a San Diego County jury in case CE269321. (Pet. at 1.) State court records 27 indicate that Christopher filed a notice of appeal from this decision on July 31, 2007, and that 28 / / /
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1 appellate counsel Laurel Nelson was appointed to represent him in October 2007. (Ex. A.) To date, 2 Nelson had not filed an opening brief on appeal. 3 4 5 6 7 8 ARGUMENT I. BECAUSE CHRISTOPHER CURRENTLY HAS A PENDING DIRECT APPEAL CONCERNING HIS CONVICTION, THIS COURT SHOULD ABSTAIN FROM RULING ON HIS PETITION Christopher has an ongoing appeal pending in the California Court of Appeal. (Ex. A.)

9 Since this pending state-court proceeding, not to mention any subsequent state habeas corpus 10 proceedings, will permit Christopher to raise claims concerning his conviction, this Court should 11 dismiss his Petition under the abstention doctrine. This Court should not now require a responsive 12 pleading from the Warden because the California Court of Appeal may take action that would render 13 the federal claims moot. 14 Federal habeas corpus is generally not available to review issues that are currently pending

15 in state court. Sherwood v. Tompkins, 716 F.2d 632, 634 (9th Cir. 1983); Carden v. Montana, 626 16 F.2d 82, 83-84 (9th Cir. 1980) (citing Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 17 669 (1970)). Federal courts should refrain from interfering with state-court proceedings unless there 18 are unusual circumstances, such as an alleged Double Jeopardy violation or "extraordinary delay." 19 See e.g., Santamaria v. Horsely, 133 F.3d 1242, 1243-44 (9th Cir. 1998) (en banc) (regarding 20 Double Jeopardy claim), amended by 138 F.3d 1280; Phillips v. Vasquez, 56 F.3d 1030, 1035-36 21 (9th Cir. 1995) (holding that a fifteen-year delay in a capital case's penalty-phase retrial permitted 22 federal review of the underlying guilt-phase conviction). 23 Although Christopher's federal Petition raises a claim regarding his speedy trial rights,

24 nothing about the claim suggests that it could not be resolved in the ordinary course of California's 25 appellate procedures. Christopher has not yet completed his efforts to seek state court relief, and 26 so this Court should abstain from reaching his claims and dismiss the Petition. 27 / / / 28 / / /
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II. Christopher Has Not Properly Exhausted His Claims Christopher's prior efforts to receive relief on his claims in the California Court of Appeal

4 and in the California Supreme Court are not sufficient to have properly exhausted his claims because 5 he sought interlocutory and extraordinary relief and has not yet completed an appeal. (See Ex. B 6 (requesting Mandamus relief). 7 To properly exhaust a claim, a federal petitioner must raise it in the manner provided by

8 the state courts, including every level of direct review. See Casey v. Moore, 386 F.3d 896, 915-18 9 (9th Cir. 2004). Presenting a claim to a state court in a manner in which it is unlikely that its merits 10 will be considered, particularly where other avenues remain available as a matter of right, does not 11 exhaust a claim. See Castille v. Peoples, 489 U.S. 346, 350-51, 109 S. Ct. 1056, 103 L. Ed. 2d 380 12 (1989); also O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) 13 (requiring presentation of direct-appeal claims to both an intermediate appellate court and the state's 14 highest court). 15 In California the trial "is the main arena for determining the guilt or innocence of an

16 accused defendant," and a direct appeal "provides the basic and primary means for raising challenges 17 to the fairness of the trial." In re Robbins, 18 Cal. 4th 770, 777, 77 Cal. Rptr. 2d 153, 959 P. 2d 311 18 (1998); see Cal. Ct. R. 8.304 (regarding the notice of appeal). When a direct appeal is inadequate, 19 California permits habeas corpus to act as another avenue for relief. See In re Harris, 5 Cal. 4th 813, 20 828, 855 P.2d 391, 21 Cal. Rptr. 2d 373 (1993). 21 Nothing about Christopher's claims suggest that direct appeal will be inadequate for him

22 to fairly raise them. Indeed, Christopher will be entitled to receive transcripts from his trial, which 23 should help him flesh out and support his claims. His claims should not be deemed exhausted until 24 after he completes his direct appeal. His statute of limitations, moreover, should not begin to run 25 until after the completion of his direct appeal. 26 / / / 27 / / / 28 / / /
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His claims are not properly exhausted and should be dismissed.

III. GROUND THREE APPARENTLY SEEKS MONETARY DAMAGES, BUT NOT RELIEF FROM CUSTODY In Ground Three, Christopher seems to argue that he is entitled to relief under 42 U.S.C.

7 § 1983 on the grounds of malicious prosecution. (Pet. at 8.) But such a claim does not seek relief 8 from custody and should be dismissed from his Petition, which he filed under 28 U.S.C. § 2254. 9 (Pet. at 1.) Ground Three should be dismissed. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 MM:adc
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CONCLUSION The Petition should be dismissed. Dated: January 10, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General DANIEL ROGERS Deputy Attorney General s/Matthew Mulford MATTHEW MULFORD Deputy Attorney General Attorneys for Respondent

25 26 27 28

SD2007803105

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EXHIBIT LIST Online Docket Printout and Assorted Records From California Court of Appeal, case

3 number D051337. 4 B. Petition for Writ of Mandate, California Court of Appeal, case number D050828

5 (see Pet. at 3 of 126). 6 C. Petition for Writ of Habeas Corpus, California Supreme Court, case number S153340

7 (see Pet. at 2 of 126). 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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