Free Reply to Opposition - District Court of California - California

Case 3:07-cv-05104-PJH

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EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General JENNIFER A. NEILL Supervising Deputy Attorney General ELIZABETH S. KIM, State Bar No. 166599 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5715 Fax: (415) 703-5843 Email: [email protected]

9 Attorneys for Respondent 10 11 12 13 14 15 16 17 18 19 20 21 INTRODUCTION Respondent moved to dismiss Petitioner Clifford's habeas corpus petition on the ground v. Judge: B. CURRY, Warden Respondent. The Honorable Phyllis J. Hamilton ANTHONY JOHN CLIFFORD, Petitioner, C07-5104 PJH (PR) REPLY TO OPPOSITION TO MOTION TO DISMISS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

22 that he failed to exhaust his state court remedies because he did not present to the California 23 Supreme Court all claims he now brings before this Court. In his opposition, Petitioner claims

24 that because he filed a Petition for Review with the California Supreme Court, the state supreme 25 court would necessarily have had to review the claims he presented to the California appellate

26 court, and because his habeas petition the state appellate court contained claims that were 27 missing from the Petition for Review, he exhausted his state court remedies as to all his claims. 28 \\\
Reply to Opp'n to Mot. to Dismiss
Clifford v. Curry

C07-5104 PJH (PR)

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1 But the reasons set forth below, Petitioner's argument lacks merit; therefore, his petition should 2 be dismissed. 3 4 5 Rule 8.504 of the California Rules of Court states that the petition must begin with the issues presented for review. Cal. Rules of Ct. 8.504(b)(1)'-^. Moreover, the relevant California Court Rule, unlike the Oregon appellate rule discussed in Peterson v. Lampert, 319 F.3d 1153 (9th Cir. 2003), a case cited by Petitioner, does not permit California Supreme Court to consider 10 any issue decided by the Court of Appeal. Id. at 1156-57. Rather, in California, after ordering 11 review, the California Supreme Court "may specify the issues to be briefed and argued," or after REPLY PETITIONER DID NOT PRESENT ALL ISSUES TO THE CALIFORNIA SUPREME COURT THAT HE NOW BRINGS BEFORE THIS COURT.

12 giving reasonable notice to parties, "the court may order oral argument on fewer or additional 13 issues or on the entire cause," or decide "any issues that are raised or fairly included in the 14 petition or answer." Cal. Rules of Ct. 8.516(a)-(b). 15 Here, Petitioner's list of issues that he presented for review to the California Supreme Court

16 does not include the claim that the post-trial or post-plea fact finding by the Board of Parole 17 Hearings violated his Sixth Amendment right to a jury trial, nor the claim that the "minimally 18 necessary" standard applied by the lower court has deprived him of his federally protected liberty 19 interest by "eviscerating the `some evidence' standard." (Ex. 1 to Mot. to Dismiss.) Also, 20 Petitioner's Petition for Review does not notify the California Supreme Court to refer to his 21 habeas petition filed with the state appellate court for additional issues. (See Ex. 1.) Therefore,

22 Petitioner does not raise or fairly include the Sixth Amendment jury trial issue, nor the 23 24 25 26 1. Rule 8.508 of the California Rules of Court is not applicable because Petitioner did not 27 indicate on the cover of his Petition for Review to the California Supreme Court that it was a "Petition for Review to Exhaust State Remedies," and because the format of Petitioner's Petition for 28 Review seems to follow Rule 8.504.
Reply to Opp'n to Mot. to Dismiss
Clifford v. Curry

"eviscerated some-evidence standard" issue to the California Supreme Court. Because Petitioner never presented these two claims to the California Supreme Court, and

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because the California never granted review of Petitioner's Petition for Review, these omitted

2 claims were never briefed to warrant the state supreme court's decision on the merits as to them. 3 Consequently, Petitioner denied the California Supreme Court the initial opportunity to

4 determine and correct the alleged violations of his federal due process and Sixth Amendment 5 rights. Picard v. Conner, 404 U.S. 270, 275 (1971). Therefore, the comity interests between the 6 federal and state systems now warrants a dismissal of Petitioner's habeas corpus petition. Rose v. 7 Lundy, 455 U.S. 509, 518-19 (1982); Picard, 404 U.S. at 275. 8 9 CONCLUSION For Petitioner's failure to exhaust the state court remedies as to all his claims, Respondent

10 respectfully requests that his petition be dismissed. 11 12 13 14 15 16 17 18 19 20 21 22 23
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Dated: January 8, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General JENNIFER A. NEILL Supervising Deputy Attorney General

ELIZABETH S. KIM Deputy Attorney General Attorneys for Respondent

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Reply to Opp'n to Mot. to Dismiss

Clifford v. Curry

C07-5104 PJH (PR)

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CERTIFICATE OF SERVICE BY U.S. MAIL Case Name: No.: I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On January 8, 2008, I served the following documents: Clifford v. Curry C07-5104 PJH (PR)

REPLY TO OPPOSITION TO MOTION TO DISMISS
by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Anthony Clifford E-84740 Correctional Training Facility CTF-SP Y-243 P.O. Box 689 Soledad, CA 93960-0689 In Pro Se E-84740

Electronic Mail Notice List
I have caused the above-mentioned document to be electronically served on the following person, who are currently on the list to receive e-mail notices for this case: NONE

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Manual Notice List
The following are those who are not on the list to receive e-mail notices for this case (who therefore require manual noticing): Anthony Clifford E-84740 Correctional Training Facility CTF-SP Y-243 P.O. Box 689 Soledad, CA 93960-0689 In Pro Se E-84740

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on January 8, 2008, at San Francisco, California.

S. Redd Declarant
SF2007200844
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