PG VII(B) Federalizing The Request: Procedural Issues.
PG VII(B)(1) Reasons For Federalizing Jury Instruction Requests.
Federalizing a request for an instruction or an objection to an instruction is efficacious for several reasons.
One, in the right case, a federal writ of habeas corpus offers a realistic avenue for obtaining relief. (See, e.g., Sheppard v. Rees (9th Cir. 1989) 909 F2d 1234, 1236-37 [murder conviction overturned where trial court improperly instructed upon felony murder when that theory was not charged in the information].) “. . . [D]ecisions of lower federal courts are . . . are entitled to great weight.” (In re Tyrell J. (94) 8 C4th 68, 79; People v. Bradley (69) 1 C3d 80, 86; see also FORECITE PG I(H)(7)(c).) Thus, when it is useful to a California court’s analysis, the court “generally will consider the result under federal law.” (In re De Leon (2004) 117 CA4th 1116, 1121.)
Two, “while lower [federal circuit court of appeal] cases are not binding precedent on [the California courts], they are persuasive authority reflecting federal law.” (People v. Koury (89) 214 CA3d 676, 686 [262 CR 870].)
Three, in the wake of initiatives such as Propositions 8 and 115, California law is being more aligned with federal law and, therefore, in many cases it is the federal constitutional rule which will control.
Four, the failure to raise a federal constitutional issue at trial allows the state reviewing court to avoid the issue as a matter of procedural default. (Harris v. Reed (89) 489 US 255, 259-265 [103 LEd2d 308; 109 SCt 1038].)
Five, the failure to raise a federal constitutional issue in state court will likely waive that issue for purposes of seeking relief in federal court. (Rose v. Lundy (82) 455 US 509, 515-521 [71 LEd2d 379; 102 SCt 1198]; see also Baldwin v. Reese (2004) 541 US 27 [158 LEd 2d 64; 124 SCt 1347] [“prisoner must fairly present his claim in each appropriate state court, including a State Supreme Court with powers of discretionary review, thereby alerting the court to the federal nature of the claim”].)
Accordingly, counsel should take advantage of every opportunity to allege federal constitutional violations in connection with the jury instructions, and, wherever possible, link the jury instruction errors with other errors occurring at trial.
STRATEGY NOTE: People v. Martinez DEPUBLISHED (2000) 82 CA4th 339 [98 CR2d 127] is subject to challenge on the waiver issue. The California Supreme Court has had numerous opinions in which it has considered Batson issues when trial counsel invoked only Wheeler. (People v. Williams (97) 16 C4th 153, 186-87 [66 CR2d 123]; People v. Jackson (96) 13 C4th 1164, 1195-98 [56 CR2d 49]; People v. Arias (96) 13 C4th 92, 133-34 [51 CR2d 770]; People v. Davenport(95) 11 C4th 1171, 1197-99 [47 CR2d 800]; People v. Crittenden (94) 9 C4th 83, 114-15 [36 CR2d 474]; People v. Montiel (93) 5 C4th 877, 907-909 [21 CR2d 705]; People v. Clair (92) 2 C4th 629, 651-53 [7 CR2d 564]; see also People v. Johnson(89) 47 C3d 1194, 1215-22 [255 CR 569] [discussing Wheeler and Batson coextensively, though trial motion was made based only on Wheeler; unclear from the opinion whether the trial was before or after Batson]; People v. Jones (97) 15 C4th 119, 159-160 [61 CR2d 386] [Supreme Court and the trial court both referred to a “Wheeler motion,” but Supreme Court also ruled under Batson].) The Martinez Court cited to two Supreme Court opinions, neither of which stands for the expansive and unsupportable proposition in Martinez. (However, in light of Martinez, counsel would now do well to cite ineffective assistance of counsel as an alternative ground of review, because there could be no reasonable tactical basis for citing Wheeler but not Batson in a peremptory challenge objection. (See People v. Asbury (85) 173 CA3d 362, 365-66 [218 CR 902].)
Also, if a defendant finds himself in federal court after a holding such as that in Martinez, the state holding of waiver should not preclude federal review. The Ninth Circuit has consistently treated motions made under Wheeler as sufficient to invoke Batson. (McClain v. Prunty (9th Cir. 2000) 217 F3d 1209, 1216, fn 2; Tolbert v. Gomez (9th Cir. 1999) 190 F3d 985, 987, and Tolbert v. Page (9th Cir. 1999) 182 F3d 677, 679; Turner v. Marshall (9th Cir. 1997) 121 F3d 1248 [granting habeas; p. 1250 notes only Wheeler was mentioned in the trial court].) And certainly, in light of the long line of Supreme Court cases mentioned above, any state court claim that a Wheeler objection doesn’t invoke Batson as well would not meet the requirement for a federal procedural bar in cases such as Ford v. Georgia (91) 498 US 411, 425-26 [112 LEd2d 935; 111 SCt 850].
PG VII(B)(2) Federal Claim Must Be Specified.
The federal constitutional claim must be sufficiently specific to alert the court as to the particular constitutional provision upon which the defendant is relying. (See Taylor v. Illinois (88) 484 US 400, 947, fn 9 [98 LEd2d 798; 108 SCt 646] [“a generic reference to the 14th Amendment is not sufficient to preserve a constitutional claim based on an unidentified provision of the bill of rights.”]; see also, Riggins v. McGinnis (7th Cir. 1995) 50 F3d 492, 494 [“it is not enough to scatter the words ‘due process’ in a brief: Counsel must sketch an argument about why the conviction violates that clause ….”]; see also Petrucelli v. Coombe (2nd Cir. 1984) 735 F2d 684.)
“In state court, it is important to allege and argue every potential constitutional violation. For example, a due process violation in the guilt phase of a capital trial can also violate a defendant’s Eighth Amendment right to a reliable guilt determination. Counsel at every stage of the proceedings must think expansively in alleging error in order to fully preserve the client’s rights.” (RECAP Issue No. 139 (June 1999) p. 60.)
In the context of jury instructions there are many potential sources of federal constitutional error. (See FORECITE PG VII(C).)
[An article, How to Preserve and Strengthen Issues for Appeal, by the Bay Area Community Law Foundation and The National Lawyers Guild (Oct. 1994) is available to FORECITE subscribers. Ask for Article Bank #A-66.]
PG VII(B)(2.1) How To Properly State The Federal Claim In State Court.
“A litigant wishing to raise a federal issue can easily indicate the federal basis for his claim in a state court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim ‘federal.’ [Citation.]” (Baldwin v. Reese (2004) 541 US 27 [158 LEd2d 64; 124 SCt 1347, 1351].)
PG VII(B)(2.2) Federal Claim May Not Be Preserved By Citing State Cases Which Discussed Federal Claims.
See Peterson v. Lampert (9th Cir. 2003) 319 F3d 1153, 1159 [“We . . . join our sister circuits and hold that, for purposes of exhaustion, a citation to a state case analyzing a federal constitutional issue serves the same purpose as a citation to a federal case analyzing such an issue.”]; see also Baldwin v. Reese (2004) 541 US 27 [158 LEd2d 64; 124 SCt 1347].)
PG VII(B)(3) Necessity Of Federalizing In Trial Court.
Any claim “fairly presented” to the State Supreme Court is deemed exhausted. (Anderson v. Harless (82) 459 US 4, 6 [74 LEd2d 3; 103 SCt 276]; Schwendeman v. Wallenstein (9th Cir. 1992) 971 F2d 313, 315-16; Kellotat v. Cupp (9th Cir. 1983) 719 F2d 1027, 1030.) However, as set forth above, the State Supreme Court may refuse to consider a federal constitutional issue unless it has been raised at trial. In Duncan v. Henry (95) 513 US 364 [130 LEd2d 865; 115 SCt 887]), it was held, in a per curiam opinion that, at a minimum, the federal constitutional provision under which a claim lies must be clearly identified in order to ensure later federal habeas consideration. Throughout the opinion in People v. Sanders (95) 11 C4th 475 [46 CR2d 751], the court held that federal constitutional claims were not preserved for appeal where trial counsel failed to object or objected only on state grounds. (See also Johnson v. Zenon (9th Cir. 1996) 88 F3d 828 [the “essentially the same claim” standard is no longer viable].)
In People v. Earp (99) 20 C4th 826 [85 CR2d 857] the Supreme Court continued its practice of finding constitutional arguments procedurally barred due to the defendant’s failure to raise the specific grounds below. “Trial counsel must take care to explicitly raise all state and federal constitutional provisions that are implicated during the trial proceedings…Simply citing to federal constitutional principles is unlikely to preserve issues for future federal review.” (RECAP Issue No. 139 (June 1999) p. 38.)
PG VII(B)(4) Necessity Of Federalizing In Appellate Court.
The same concerns which apply to preservation of federal constitutional issues at trial apply to appellate counsel in the state appeal. “State appellate counsel must be sure to include appropriate argument for all grounds raised.” (RECAP Issue No. 139 (June 1999) p. 38.) Even if a claim has been consistently rejected in state court, it should still be raised on appeal in the intermediate appellate court and in a petition for review to the state’s highest court. For example, in California, if the claim was not raised in the appellate court it does not qualify for consideration on a petition for review to the California Supreme Court and, thus, would be considered procedurally defaulted. (See Calif. Rules of Court Rule 29(b)(1.) Hence, despite criticism from the intermediate appellate court for raising frivolous claims (see e.g., People v. Hearon (99) 72 CA4th 1285 [85 CR2d 424]), counsel’s obligation to his or her client would seem to require raising any potential federal constitutional claim that may ultimately be vindicated by a subsequent favorable opinion of the United States Supreme Court or the lower federal courts. (See also FORECITE F 2.90 n13.)
PG VII(B)(4.1) Federal Habeas: Exhaustion – Claim Must Be Presented Throughout The State’s Direct Appeal Process.
To properly exhaust a claim for federal habeas corpus the claim must be raised (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial post-conviction process available in the state.” (Liebman and Hertz, Federal Habeas Corpus Practice and Procedure, Section 23.3 b (4th Ed. 1998); see also Casey v. Moore (9th Cir. 2004) 386 F3d 896 [6th Amendment claim not exhausted when presented to California Supreme Court but not intermediate court of appeal].)
PG VII(B)(4.2) Necessity Of Federalizing In Appellate Court: Issues Raised For The First Time In Petition For Rehearing Or Reply Brief May Be Sufficient For Purposes Of Exhaustion.
While it certainly is not the preferred practice, it is certainly better to raise the issue for the first time in a petition for rehearing than not to raise it at all. For example, in the federal habeas petition in Cox, Judge Marshall rejected the attorney general’s argument “that raising the claims in a petition for rehearing was insufficient for purposes of exhaustion.” (See RECAP Issue No. 139 (June 1999) p. 47.) In reaching this conclusion, Marshall cited a number of cases where the California Supreme Court addressed claims for the first time in a reply brief or a supplemental brief. (Ibid.; see e.g. Ford v. Georgia (91) 498 US 411, 423-424 [112 LEd2d 935; 111 SCt 850] [federal courts should find a state procedural bar only when the procedural bar is “firmly established and regularly followed”].)
CAVEAT: Appellate counsel should not assume that raising an issue in a reply brief or petition for rehearing is sufficient. The better practice is to request leave to file a supplemental brief. If the request is granted, which they often are, there will be no question of waiver or procedural default
PG VII(B)(5) Necessity Of Presenting Federal Issue To State’s Highest Court Even If Review Is Discretionary.
O’Sullivan v. Boerckel (99) 526 US 838 [144 LEd2d 1; 119 SCt 1728] held that all potential federal habeas claims must be submitted to the highest state court for discretionary review in order to preserve the claim for federal habeas corpus. There is a suggestion in Justice Souter’s concurrence that a state court may announce that it does not want to hear ordinary appeals, and thus the remedy is unavailable and does not have to be exhausted. He pointed out that South Carolina has done that and that “other states may do the same.” (Id., 119 SCt at 1742; see also Kibler v. Walters (9th Cir. 2000) 220 F3d 1151, 1152-53 [prisoner doesn’t exhaust constitutional claim in motion for discretionary review when claim was only referenced in brief submitted to lower court].)
PG VII(B)(6) Federalizing The Request: Procedural Issues: Primer On Federal Habeas.
See Article Bank #A-98 for the article”The Great Writ: A Primer On The Means By Which Federal Habeas Corpus Relief May Be Obtained” by Dallas Sacher.
PG VII(B)(7) Standard Of Prejudice: Denial Of Confrontation.
Under Delaware v. Van Arsdall (86) 475 US 673 [89 LEd2d 674; 106 SCt 1431], a confrontation clause violation does not result in automatic reversal, but rather is “subject to the Chapman harmless-error analysis.” (Id. at 684.) The Supreme Court held in Van Arsdall that “the correct inquiry is whether, assuming that the damaging potential of the cross examination were fully realized, we might nevertheless say that the error was “harmless beyond a reasonable doubt.” (Ibid.) The importance of the testimony to the case, presence or absence of other evidence corroborating or contradicting the witness, extent of permitted cross-examination, and overall strength of the prosecution’s case are among the factors we consider in determining whether the error is harmless. (Ibid.; see also United States v. Schoneberg (9th Cir. 2005) 396 F3d 1036, 1044.)