Opposition Brief — Compoy v. Turner

ae

} Supreme Court. U.S.

IGINAL res

2 APR 14 1988

No. 87-889 JOSEPH F. BPANIOL, JR.

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

JOSEPH COMPOY, WARDEN ATTORNEY

OF THE STATE OF CALIFORNIA

Petitioner,

Vv.

NATHAN KEVIN TURNER,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Daniel H. Bookin *

Dean M. Gloster

Attorneys for Respondent

Nathan Kevin Turner

Farella, Braun & Martel

235 Montgomery Street

San Francisco, CA 94104

Telephone: (415) 954-4400

* Counsel of Record

QUESTION PRESENTED

Should this Court depart from its usual rule, and review a

case turning solely on the interpretation of state law and

procedure, when the decision of the court below correctly

interprets and applies state law?

TABLE OF CONTENTS

QUESTION PRESENTED eeeeseeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeveeeeee i

INTRODUCTION eeeeoeeeveeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 1

STATEMENT OF THE CASE eeeeeeoeeeeveeeeeeeeeeeeeeeeeeeeeeeeeeeeee 1

ARGUMENT eeeeoeeeeeeeeeeeveeeeeeeeeeeveeeveeeeeeeeeeeeeeeeee eee eeaneee 3

I. THE DECISION BELOW IS A WHOLLY UNREMARKABLE

APPLICATION OF SETTLED PRECEDENT, NOT APPROPRIATE

FOR THIS COURT'S REVIEW eeeeeeaeveaeeeeeeeeeeeeeeeeeeeaeee 3

II. PETITIONER IS ASKING THIS COURT TO SUBSTITUTE

ITS JUDGMENT OF CALIFORNIA LAW FOR THE CORRECT

ANALYSIS OF THE COURT BELOW e@eeeoeeveeeeeeeeeeeeeeeeeeeeene 3

A. The Question Presented, Involving Solely The

Interpretation Of California Law, Does Not

Merit This Court's Attention ..ccccccccccccccccecs 4

B. The Interpretation Of California Law By The

Court Below Is Correct See eeereec@; sees oen ee e080 6e6€e 6 0 4

III. PETITIONER'S CLAIMS THAT THE RULING BELOW WILL

CREATE PROBLEMS ARE UNFOUNDED eeeeeoeaeveveeeeeeeeeeeeeeeee 8

A. The Ruling Below Has Been The Controlling Law

In The Ninth And Other Circuits For More Than

Ten Years eeeeeeeeeeeeeeeeeeeeeeeeeeneeeeeeeee ee eee 8

B. The Decision Below Is Fact-Bound And Narrowly

Circumscribed By Other Ninth Circuit Precedent ... 10

C. Petitioner Should Direct His Arguments On The

Interpretation Of California Law, In The First

Instance, To The California Supreme Court ........ 12

CONCLUSION eeeeveeeeeeeeereeeeeeeerereeeeeeeeeeeeeeeeeeeeeeeeeee 12

ii.

TABLE OF AUTHORITIES

Cases

Anderson v. Harless,

459 U.S. 4 (1982) eeeereeeeeeeeeeeereeeeeeeeeeeeeene

Brown v. Allen,

344 Uswe 443 (1953) eeereeeeeeeeeeeeeeeeeeeeeeeeeee

Fay v. Noia,

372 Uae 391 (1963) eoeeeeeveeeeeeeeeeeeeeeeeeee eee e

Galtieri v. Wainwright,

582 F.2d 348 (5th cir. 1978) eeeeeeeeeeeeeeeeeeeee

Gonce v. Redman,

780 F.2d 333 (3rd Cir. 1985) eeeereeereeeeeeeeeeeeee

Gonzales v. Stone,

546 F.2a 807 (9th Cit. 1976) eeeeeeeeeeeeeeeeeeeee

Granberry v. Greer,

U.S. » 107 S.Ct. 1671 (1987) ccccccsccccees

Hall v. Sumner,

682 F.2d 786 (9th €i2. 1982) eeeeeeoeveeveeeeeeeeeeeeee

Harris v. Superior Court,

500 F.2d 1124 (9th Cir. 1974), (en banc) cert.

denied, California v. Harris, 420 U.S. 973

(1978) cccccccccccccccccccccccccccccsecccccccscece

In re Brown,

9 Cal.3d 679, 108 Cal.Rptr. 801 (1973) ...eeeeeeee

Journet v. Coombe,

567 F.Supp. 503 (S.D.N.Y. 1983) eeeeeeeeeeeeeeeeee

Kellotat v. Cupp,

Tae Gee See? COUR Che. 1969) cccccaccccscecnccess

Lindquist v. Gardner,

770 v. 7 (9th ak © 1985) eoeeeeeeeeeeeeeeeeeeee

Mann v. ae

817 T. 1471 (llth Cit. 1987) eoeeeoeeeeeeeeeeeeeeee

McNulty v. Olim,

652 er 1369 (9th og 2 1981) eeeweeoeeveeeeeeeeeeeeee

McQuown v. McCartney,

795 F. 07 (9th Cit. 1986) eeeeeeeeeeeeeeeeeeeee

Murray v. Carrier,

477 U.S. 478 (1986) eeeeeeeveeeneeeeeeeeeeeeereeeeeee

Parker v. Parratt,

662 F.2d 479 (8th Cir. 1981), cert. denied,

459 U.s. 846 (1982) eeoeeeeeweeeeeeeeeeeeeeeeeeeeeee

People v. Angulo,

85 Cal.App.3d 514, 148 Cal.Rptr. 517 (1978)

People v. Carter,

275 Cal.App.2d 815, 80 Cal.Rptr. 202 (1969)

iii.

11

10

11

11

12

10

Cases

People v. Haynes,

104 Cal.App.3d 118, 164 Cal.Rptr. 552 (1980) .....

People v. Phillips,

41 Cal.3d 29, 222 Cal.Rptr. 127 (1985) ...........

People v. Pope,

23 tal at S22, 192 Cal.Rpte. F732 (1979) ccccoccces

People v. Rodriguez,

275 Cal.App.2d 946, 80 Cal.Rptr. 397 (1969) ......

People v. Spring,

153 Cal.App.3d 1199, 200 Cal.Rptr. 849 (1984) ....

People v. Weston,

Picard v. Connor,

UeBe (1971) .

Pitchess v. Davis,

Uebe (1978S) .

Reed v. Ross,

468 U.Be 1 (1984) eee

Schiers v. People of the State of California,

333 F.2d 173 (9th Cir. 1964) wcscceesceecceccecees

Smith v. Digmon,

434 U.S. 332 (1978) .

Sumner v. Mata,

449 U.S. 539 (1981) .

eeeeereeeeeeeeeeeeeeeeeeeeeeee

Svanger v. Zimmerman,

F.2d 291 (3rd Giz. 1984) eenereeeeeeeeeeeeeeeeee

Sweet v. Cupp,

640 Fo35 ee eee Gees BOR) 00064006060 0006408086

Tamapua v. Shimoda,

796 F.2d 261 (9th Cit. 1986) eeeeeeeeeeeeeeeeeeeee

Thompson v. Procunier,

F.2d 26 (9th Cir.

Turner v. Com

1976) eeeeeeeeeeeeeeeeeeeeee

’

F. (9th Cit. 1987) eeereeereeeeeeeeeeeeeee

Walker v. Zant,

Fe 1087 (llth cit. 1982) eeeeeeeeeeeeeeeeeee

Wiley v. Sowders,

Fe 42 (6th Cir. 1981) cert denied,

454 U.S. 1091 (1981)

Wood v. Georgia,

450 U.S. 261 (1981) .

eee eee ee eee ee eee eee e ee eeeeeee

eeeeeeeeeeereeeeewreeeeeeeeeeee

Statutes and Other Authorities

Whither (or Wither) Habeas Corpus? Reflections

on the Supreme Court's 1985 Term,

111 F.R.D. 265 (1986)

eeeereeereeee eee eee eee eeeeeeee

iv.

10

10

INTRODUCTION

The Petition does not deserve this Court's attention. It

presents only a question of the interpretation of California

procedure, as even Petitioner recognizes. (Petition ("Pet.") at

22.) In attacking the correct interpretation of state law made

by the court below, Petitioner has inaccurately characterized

California decisional authority. Likewise, Petitioner's

exaggerated claims of potential future harm are difficult to

credit: The holding below has been settled law for over ten

years.

If Petitioner wishes to alter state procedures on addressing

ineffective assistance of counsel claims on direct appeal, Peti-

tioner should direct his pleas to California Supreme Court, not

this Court. The Petition is simply another attempt to create

additional procedural bars to the speedy resolution of Respondent

Turner's habeas claims by the District Court, despite settled law

of this Court to the contrary. Accordingly, Respondent requests

that the Court deny the Petition, allowing Respondent to present

*

his constitutional claims to a federal forum.

a

STATEMENT OF THE CASE

Facing extremely serious charges, Respondent Nathan Kevin

Turner ("Turner") moved before trial to replace his counsel,

Claiming the attorney was not “working with" him and had demon-

strated limited preparation through only minimal contacts with

Turner over the four months before trial. (Appendix D to Pet.,

p. A-37.) The trial judge denied Turner's motion, and at trial

Turner was convicted of 46 counts covering various offenses and

sentenced to serve 174 years and 4 months in state prison.

(Pet., at 7.)

Turner appealed the judgment in state court, raising the

claim that he was denied effective assistance of rounsel at trial

by his counsel's failure to investigate certain defenses, failure

to present a diminished capacity defense, failure to consult a

psychiatrist and failure to raise the issue that PCP addiction

resembles schizophrenia.2/ (R5, lodged opening brief.)

Turner's claims were presented in voluminous briefs to the

California Court of Appeal, (R5, lodged opening brief), including

the merits of his ineffective assistance of counsel claims. The

response briefs of the California Attorney General, on behalf of

the state, dealt with the merits of Turner's claim at length.

(R5, lodged respondent's brief, at pp. 11-16.) The California

Court of Appeal, in a fourteen page unpublished opinion, rejected

Turner's arguments after explicitly discussing the merits of his

ineffective assistance of counsel and other claims. (Appendix D

to Pet., at pp. A-33 through A-37.)

The California Supreme Court denied Turner's petition for

hearing, likewise accompanied by a voluminous briefing of the

issues, (R5, lodged appellant's petition for hearing), without

indicating the grounds for denial.

Turner then filed a petition of habeas corpus in federal

District Court. Despite Turner's direct appeal to the California

Supreme Court, the District Court dismissed his petition for

failure to exhaust state remedies, because Turner had not also

filed a subsequent state habeas petition.

The Court of Appeals reversed. Turner v. Compoy, 827 F.2d

526 (9th Cir. 1987}. After a careful analysis of California case

law, the court held that California does not require ineffective

assistance of counsel claims such as Turner's to be addressed on

the merits only in a state habeas petition. Under California

precedents, the state courts are to deny on the merits an inef-

fective assistance of counsel claim presented on direct appeal if

the appellant does not sufficiently allege that counsel's actions

fell below the legally required standard or if the record

1/ Turner also raised the question of whether a person so

severely intoxicated by PCP as to be presumed under the

influence is capable of effectively waiving Fifth Amendment

Miranda rights to remain silent, whether his sentence of 174

years and 4 months was cruel and unusual, and a variety of

other claims.

provides an adequate explanation of trial counsel's tactical

choices. Given the California Supreme Court's silence in denying

Turner's appeal the Circuit Court presumed, pursuant to long-

standing precedent, that the denial was on the merits. Respon-

dent Turner therefore exhausted his state remedies by fully and

fairly presenting his claims to the state courts on direct

appeal, where they were denied.

ARGUMENT

I. THE DECISION BELOW IS A WHOLLY UNREMARKABLE APPLICATION

OF SETTLED PRECEDENT, NOT APPROPRIATE FOR THIS COURT'S

REVIEW.

The exhaustion rule requires that the “substance” of a

federal constitutional claim has been “fairly presented" to the

state courts. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276

(1982); Picard v. Connor, 404 U.S. 270, 275, 277-78, 92 S.Ct.

509 (1971). Such a claim is “fairly presented” by direct appeal

even if the State court does not actually address the claim

raised. Smith v. Digmon, 434 U.S. 332, 333, 98 S.Ct. 597 (1978).

Where the state permits alternative methods of review, the

federal court does not require the prisoner to exhaust every

alternative. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822 (1963).

Thus, if a state prisoner presents his federal claim on direct

review to the state court and it is rejected there, the prisoner

need not ask the state for collateral relief based on the same

issues in order to exhaust state remedies. Brown v. Allen, 344

U.S. 443 (1953).

The decision of the court below is no more than a fact-bound

application of these settled principals.

II. PETITIONER IS ASKING THIS COURT TO SUBSTITUTE ITS JUDGMENT

OF CALIFORNIA LAW FOR THE CORRECT ANALYSIS OF THE COURT

BELOW.

Petitioner is not asking this Court to overturn its settled

precedents. Nor does the Petitioner argue that there is a dis-

agreement among the circuits on this issue. Instead, Petitioner

argues that the opinion below misinterprets a California deci-

Sion, People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d

859 (1979). See Pet., at 22. The Circuit Court's interpretation

of California law, however, is entirely correct and is consistent

with the interpretation of California's own state courts. The

Petition in this case does not present a “special and important

reason” for the grant of certiorari, as required by Rule 17 of

the Rules of the Supreme Court of the United States.

A. The Question Presented, Invelving Solely The Inter-

pretation Of California Law, Does Not Merit This

Court's Attention.

As the court below recognized, a state may require that

state prisoners present their claims to the state courts via a

single procedure as long as the right to review is not unduly

limited. Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987);

Thompson v. Procunier, 539 F.2d 26, 28 (9th Cir. 1976).2/ The

only question, then, raised by Petitioner is whether the

California Supreme Court in People v. Pope, 23 Cal.3d 412, 152

Cal.Rptr. 732, 590 P.2d 859 (1979) has required all ineffective

assistance claims like Turner's to be presented on state habeas

instead of direct review.

The United States Supreme Court is not a court of last

resort for the interpretation of various state's laws. Moreover,

as this Court recently recognized, the Supreme Court should

“defer to the Court of Appeals which is more familiar with [the

state court's) practice,” on the issue of whether a particular

avenue of appeal adequately exhausts state remedies.

Granberry v. Greer, U.S. _, 107 §.Ct. 1671, 1676 n.9

(1987).

B. The Interpretation Of California Law By The Court

Below Is Correct.

The California Supreme Court has stated that issues review-

able on direct appeal in California “include those raised by a

Claimed ineffectiveness of counsel.” In re Brown, 9 Cal.3d 679,

2/ See also, Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639,

5i6-48 (1586); Reed v~ Ross, 468 U.S. 1, 10-12, 104 S.ct.

2901 (1984); Mann v. Dugger, 817 F.2d 1471, 1474-75 (llth

Cir. 1987) (failure to raise a claim on direct appeal as

required by state law precludes federal habeas review).

682, 108 Cal.Rptr. 801, 511 P.2d 1153 (1973). On direct appeal.

California courts have often reviewed and decided ineffective

assistance of counsel claims similar to those urged by Turner.

See Hall v. Sumner, 682 F.2d 786, 788 (9th Cir. 1982) (the

California state court, on direct appeal, had “reviewed all of

Hall's ineffective assistance claims,” similar to Turner's here,

and found them “meritless"); People v. Spring, 153 Cal.App.3d

1199, 1208, 200 Cal.Rptr. 849 (1984) (denying on the merits an

ineffective assistance of counsel claim raised on direct appeal);

People v. Weston, 114 Cal.App.3d 764, 778-82, 170 Cal.Rptr. 856

(1981) (the court, citing People v. Pope, determined both the

incompetency of counsel claims urged on direct appeal as well as

those restated in a joined habeas petition) .2/

Nothing in the California Supreme Court's decision in

People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859

(1979) requires petitioners to present their incompetence of

counsel claim on state habeas proceedings rather than on direct

appeal. To the contrary, Pope specifies that the merits of an

ineffective assistance of counsel claim, even based on matters

outside the record, may be decided on appeal. Under Pope, “a

claim of ineffective assistance is more appropriately made ina

petition for habeas corpus,” only if (1) the appellant carries

the burden of proving that trial counsel failed to act in a man-

mer to be expected of a reasonably competent attorney, (2) appel-

lant demonstrates that counsel's acts or omissions resulted in

the withdrawal of a potentially meritorious defense, and (3) the

3/ also le v. Rodriguez, 275 Cal.App.2d 946, 953-955,

cal Riper: 397 (1969) tinettective assistance of counsel

case); recp-s v. Angulo, 85 Cal.App.3d 514, 148 Cal.Rptr.

517 (19 ng, on direct appeal, that joint represen-

tation of two co-defendants resulted in prejudice, requiring

reversal cf the judgments); le v. Carter, 275 Cal.App.2d

615, 819-821 80 Cal.Rptr. 20 court addresses on

appeal incompetence of counsel claim stemming from dual

representation).

record contains no explanation for the challenged aspect of

representation. 4/ 23 Cal.3d, at 425-426.

Later California decisions have interpreted Pope consistent

with this language. For example, in People v. Phillips, 41

Cal.3d 29, 60-62, 222 Cal.Rptr. 127, 711 P.2d 423 (1985), decided

after Pope, the California Supreme Court addressed the substance

of some of the prisoner's ineffective assistance of counsel

theories based on materials outside the record on direct appeal,

while leaving others for habeas. See also People v. Haynes, 104

Cal.App.3d 118, 123, 164 Cal.Rptr. 552 (1980) (restating the Pope

test consistent with the Ninth Circuit's view).

Here, Turner presented his claims to the state appellate

court in voluminous detail. (See R5, lodged opening brief,

lodged reply brief}. In response, the California Attorney

General, representing the state, discussed the facts and briefed

the merits of those claims, arguing that even if Turner's version

of the facts were true, his allegations did not make out a

legally sufficient ineffective assistance claim, and that the

record explained his counsel's actions as correct tactical

choices. (R5, lodged respondent's brief.)2/ Given the state's

4/ Petitioner's argument that Pope holds that all ineffective

assistance arguments based on matters outside the record

must be dealt with only on habeas is flatly contradicted by

the language of + It is also logically unsupportable.

Under Petitioner's theory, this Court's pronouncement in

Wood v. Georgia, 450 U.S. 261, 274 n.21, 101 §.Ct. 1097

(1981), refusi to vacate a state criminal judgment on

appeal but stating that “relief may be available in habeas

corpus ewes ool would thereafter be read as an

inflexible pronouncement that dual representation attorney

conflict of interest claims may not be reviewed on direct

appeal by the U.S. Supreme Court, under any circumstances.

5/ Specifically, the state argued that even assuming that

Turner was on PCP at the time of his confession, his confes-

sion was still voluntary (RS, lodged respondents’ brief, at

13-14); that Turner's counsel “was as effective as possible

given the facts and circumstances of his case,” (id., at

15); that diminished capacity was not a potentially meritor-

ious defense or a defense to the general intent crime

charges against Turner, (id., at 16); that the record

explained counsel's choice to for pursuing the PCP-based

defense as the most effective tactical course of action:

That to claim Turner was not the assailant was more persua-

sive than roe to claim, inconsistently, both that Turner

wasn't the assailant and that he committed the acts, but

(footnote continued)

arguments, the state appellate court could determine Turner's

ineffective assistance of counsel and other claims on the merits

under Pope, rather than deferring their consideration until

habeas. People v. Pope, 23 Cal.3d, at 425; People v. Haynes, 104

Cal.App.3d, at 123.

Petitioner makes a lengthy argument that denial of a peti-

tion by the California Supreme Court should not be taken as a

determination on the merits of a case. (Pet., at 17-23.) This

extensive discussion is simply irrelevant: A state court cannot

prevent the exhaustion of a federal claim by simply refusing to

address it. Smith v. Digmon, 434 U.S. 332, 333, 98 S.Ct. 597

(1978), Swanger v. Zimmerman, 750 F.2d 291, 295 (3rd Cir. 1984).

Where exhaustion is concerned, the question is not whether the

state court has passed on the merits of the constitutional claim |

presented, but rather whether the federal claims have been

“fairly presented," whether decided or not. Anderson v. Harless,

459 U.S. 4, 6, 103 S.Ct. 276 (1982); Picard v. Connor, 404 U.S.

270, 275, 277-78, 92 S.Ct. 509 (1971) .8/ The State Court of

Appeals explicitly dealt with the merits of Turner's claims under

a

the analysis set out in Pope. Turner's voluminous briefs set out

his legal theories and the factual basis for his claims. Under

the circumstances, the holding below correctly concluded that

Turner had provided an adequate opportunity for the state courts

to pass upon the merits of his federal claim.

Further, the Circuit Court's statement that it presumed the

California Supreme Court denied Turner's direct appeal on the

suffered from diminished capacity on each of the many nights

in question. (Id., at pp. 15-16.) After arguing each of

Turner's contentions on the merits, the state raised, in one

page of their 2l-page Brief, the alternative argument that

Turner's failure to provide an adequate record precluded

review on appeal. (Id., at p. 17.)

6/ As one court explained, “[c]Jomity does not require that the

federal courts decline to exercise jurisdiction in the face

of allegations that the state courts have been presented

with the merits of the claims for habeas corpus relief and

have, for one reason or another, refused or been unable to

act upon the claim." Galtieri v. Wainwright, 582 F.2d 348,

354 n.12 (Sth Cir. 1978).

merits was simply a shorthand for the court's more lengthy

analysis: Given the reasoning in Pope and the basis of Turner's

Claims, the Ninth Circuit refused to interpret the California

Supreme Court's silence as a statement that its denial of review

was premised on a holding that Turner should have brought his

claim on state habeas.2/

III. PETITIONER'S CLAIMS THAT THE RULING BELOW WILL CREATE

PROBLEMS ARE UNFOUNDED.

A. The Ruling Below Has Been The Controlling Law In

The Ninth And Other Circuits For More Than Ten

Years.

Petitioner devotes much of the petition to a speculative

argument that the decision below “creates serious and importa

problems" because it will allow habeas petitioners to bypass the

state courts in the future. (Pet., at pp. 13-35.) It is diffi-

cult to credit the Petic.oner's argument, since the rule below

has been the law in the Ninth and other Circuits for over ten

years, without any appreciable showing of harm.

The Ninth Circuit's decision in Thompson v. Procunier, 539

F.2d 26 (9th Cir. 1976) is particularly instructive. Exactly

contrary to the argument the California Attorney General now

makes on behalf of Petitioner, there he suggested that presenting

ineffectiveness of counsel claims to the California courts on

habeas was improper; that such claims must be brought on direct

appeal to adequately exhaust remedies. 539 F.2d at 27-28.

In response, the Ninth Circuit held in Thompson that inef-

fective assistance claims may be presented by direct appeal in

California, but that “a federal court will not, prior to granting

habeas relief, require that a petitioner, in a state where [two]

alternative methods of reviewing and Constitutional issues are

7/ Given the particular facts of this case and the unique anal-

ysis California courts are to go through under Pope, this

holding is unremarkable. This Petition does not present the

question of whether a federal habeas petition should be

barred for an independent and adequate state procedural

ground when that ground appears in the record and the state

courts deny review without indicating that they have reached

the merits.

available, exhaust [both] alternatives." 539 F.2d at 28. The

court went on to conclude “where a petition for a writ of habeas

corpus presenting a federal constitutional question is denied by

a state court with no reason given, we will assume the state

court has had an opportunity to pass upon the merits of the issue

and has resolved it against the petitioner.” Id. 8/

Similarly, in Hall v. Sumner, 682 F.2d 786 (9th Cir. 1982),

the state prisoner raised ineffective assistance of counsel

claims almost identical to Turner's -- failure to investigate

facts and the defenses of diminished capacity and insanity -- via

direct appeal in California. The presentation of these claims in

the briefs and their rejection by the state courts adequately

exhausted state remedies, and it was not necessary for the

prisoner to file a state habeas petition in order to attack his

conviction collaterally in federal court. 682 F.2d, at 788.

Petitioner predicts dire consequences in the future from the

ruling below, but has failed to show any harm that has occurred

during the past twelve years while the rule of law in the

8/ See Gonzales v. Stone, 546 F.2d 807, 808 & n.2 (9th Cir.

1576) (where a California prisoner presents his ineffective

assistance of counsel claim on direct appeal, he is not

further “required to show that he sought collateral review

in the state courts,” and such an “additional step is not a

condition to petitioning for federal habeas corpus relief");

Harris v. Superior Court, 500 F.2d 1124, 1128-29 (9th Cir.

1974) cert. eer California v. Harris, 420 U.S. 973

(1975) (rejecting arguments by the California Attorney

General that there was no exhaustion of remedies because the

California Supreme Court may have denied the petition for

review “on procedural rather than on substantive grounds,”

and holding that when the California Supreme Court “denies a

habeas corpus petition without opinion or citation, or when

it otherwise decides on the merits of the petition, the

exhaustion requirement is satisfied"); see also Tamapua v.

Shimoda, 796 F.2d 261, 262 (9th Cir. 1986) (exhaustion

requirements were satisfied once the prisoner's claim was

fairly presented to the highest court of Hawaii, describing

the operative facts and the legal theory on which his claim

is based); McNulty v. Olim, 652 F.2d 1369, 1370 (9th Cir.

1981) (holding that even though the Hawaii Supreme Court

"did not ex»licitly cast its discussion on the effectiveness

of the appe.lant's trial counsel in Constitutional terms, we

are convinced that the issue the appellant seeks to have re-

viewed by means of his petition for a writ of habeas corpus

was presented to the Supreme Court of Hawaii fully, fairly,

and precisely. Therefore, appellant has exhausted his state

remedies without regard to whether further collateral relief

might be available to him under Hawaii law").

decision below was the status quo. 2/ The rule below is also the

settled law in other circuits.20/

B. The Decision Below Is Fact-Bound And Narrowly

Circumscribed By Other Ninth Circuit Precedent.

In this somewhat unusual case, Turner presented voluminous

briefs summarizing the factual and legal basis for his arguments

both to the California Court of Appeals and the California

Supreme Court. The California Court of Appeals explicitly dealt

with those claims on the merits. The Ninth Circuit's decision

that under the circumstances the “substance” of Turner's federal

Constitutional claim was “fairly presented" to the state courts

is fact-bound, as other Ninth Circuit decisions reveal by nar-

rowly circumscribing the holding of the case below. These other

9/ As one commentator notes, habeas corpus cases as a percen-

tage of the federal courts' civil caseload have actually

decreased to 3.5% of the caseload; over a period of time

when the number of state prisoners increased by 150%, the

number of federal habeas petitions remained relatively

Static. Whither (or Wither) Habeas Corpus?: Reflections on

the Supreme Court's 1985 Term, lll F.R.D. 265, 266-67

(1986).

10/ See, e.g., Walker v. Zant, 693 F.2d 1087, 1088 (llth Cir.

1982) (summary denial by Georgia Supreme Court of direct ap-

peal raising insufficient preparation of counsel issue suf-

ficiently exhausted state remedies; no need for petitioner

to also seek state collateral relief); Parker v. Parratt,

662 F.2d 479, 482 (8th Cir. 1981), cert. denied, 459 U.S.

846 (1982) (failure by the Nebraska Supreme Court to dispose

of the petitioners' Sixth Amendment issues raised on direct

appeal did not prevent that direct appeal from adequately

exhausting state remedies, since it was “enough that the

state court was on notice of the question and was presented

the opportunity to rule"); Wiley v. Sowders, 647 F.2d 642,

647 (6th Cir.), cert. denied, 454 U.S. 1091 (1981), (direct

appeal to the Kentucky Supreme Court of the petitioners'

ineffective assistance claims sufficiently exhausted state

remedies where the briefs to the Kentucky Supreme Court

fairly presented the claim even though "the Kentucky Supreme

Court refused to decide an issue put squarely before it");

Journet v. Coombe, 567 F.Supp. 503, 504-505 (S.D.N.Y¥. 1983)

(direct appeal of an ineffective assistance of counsel claim

adequately exhausted state remedies even though the

petitioner's conviction was affirmed without opinion by the

appellate division and the highest court of New York denied

leave to appeal); see also, Swanger v. Zimmerman, 750 F.2d

291, 295 (3rd Cir. 1984) (direct appeal satisfies the

exhaustion requirement even if the appellate court does not

discuss the claim; the habeas corpus petitioner need not

also raise the claim on state collateral attack before

proceeding to federal court).

10.

Ninth Circuit decisions and this Court's precedents render

Petitioner's speculation of harm wholly unfounded.

The Ninth Circuit's ruling in Turner is limited by that

Circuit's settled law that if a prisoner's claim based on mater-

ial outside the record is not actually raised in the papers on

direct appeal, then the prisoner has not exhausted his state

remedies. Schiers v. People of California, 333 F.2d 173, 176

(9th Cir. 1964) (ineffective assistance of counsel claim) .22/

Further, where there are alternative remedies available, the

petitioner may not attempt to exhaust state remedies by invoking

a state procedure which is an extraordinary remedy that does "not

create a fair opportunity for decision" by the state courts.

Kellotat v. Cupp, 719 F.2d 1027, 1031 (9th Cir. 1983) (petition

to the Oregon Supreme Court for interlocutory review does not

constitute exhaustion) .2/

Petitioner's argument that the decision below deprives the

state courts of the opportunity to adjudicate the facts before

they are decided by a federal court also ignores this Court's

ruling in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764 (1981).

1l1/ A claim is fairly presented, and state remedies adequately

exhausted, only if "the petitioner has described the oper-

ative facts and legal theory on which his claim is based."

Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986).

Here, the briefs of respondent and of the state in the ear-

lier state proceedings were lodged with the district court,

permitting the federal court to consider the arguments made

to the state court in its assessment of whether state reme-

dies had been adequately exhausted. (R5, lodged briefs.)

Compare Gonce v. Redman, 780 F.2d 333, 336 (3rd Cir. 1985)

(where the state court does not indicate in its opinion that

the federal claims were presented, and the petitioner fails

to make the briefs from his state court proceeding part of

the record in his federal habeas proceeding, the federal

court will assume that the state courts were not provided an

opportunity to pass upon the claims).

12/ See Lindquist v. Gardner, 770 F.2d 876 (9th Cir. 1985)

(petition for an original writ of habeas corpus to the Idaho

Supreme Court does not constitute exhaustion of state

remedies); Sweet v. Cupp, 640 F.2d 233 (9th Cir. 1981) (writ

of original habeas corpus jurisdiction in the Oregon Supreme

Court does not constitute exhaustion of remedies); see also

Pitchess v. Davis, 421 U.S. 482 (1975) (application to the

state court for an extraordinary writ of prohibition on a

question that can be raised in the ordinary course of state

proceedings does not constitute adequate exhaustion).

ll.

There, this Court held that facts, if addressed and decided on

direct appeal by a state court, are binding on a federal habeas

court.

C. Petitioner Should Direct His Arguments On The

Interpretation Of California Law, In The First

Instance, To The California Supreme Court.

As the Ninth Circuit indicated in refusing to stay its man-

date in this case, if the California Supreme Court wishes federal

courts to treat the denial of an appeal as a decision on proce-

dural, rather than substantive grounds, the California Supreme

Court can so indicate in a single sentence when it denies the

appeal. Petitioner is reduced to arguing that adding this single

sentence would undulv burden the California Supreme Court.

(Pet., at 26-28.) It should be noted that in the past, the

California Supreme Court has indicated its summary denial of a

hearing was based on procedural grounds. See, e.g., McQuown v.

McCartney, 795 F.2d 807, 808 & n.1, 809 (9th Cir. 1986);

Harris v. Superior Court, 500 F.2d 1124 (9th Cir. 1974) (en

banc), cert. denied, 420 U.S. 973, 103 S.Ct. 1394 (1975).

Petitioner ignores that if the California Supreme Court

wishes to change its rules and require that ineffective assist-

ance of counsel claims be dealt with by state habeas review, the

California Supreme Court is free to do so. As discussed above,

that is not the current rule under California state law. If the

California Attorney General wishes the rule to be changed, he

should direct his request to the California Supreme Court, not

this one.

CONCLUSION

Petitioner misunderstands the doctrine of exhaustion of

state remedies, which requires only that the substance of the

federal claim be fairly presented to the state courts. The nar-

row and largely fact-bound decision below correctly found that

Turner's claims were adequately presented under California law.

12.

Accordingly, Respondent respectfully requests the Court to deny

the Petition and permit him his day in federal court.

Respectfully submitted,

Daniel H. Bookin *

Dean M. Gloster

Attorneys for Respondent

Nathan Kevin Turner

Farella, Braun & Martel

235 Montgomery Street

San Francisco, CA 94104

Telephone: (415) 954-4400

* Counsel of Record

April 14, 1988

13.

Ot

No. 87-889

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987 r

JOSEPH COMPOY, WARDEN ATTORNEY

OF THE STATE OF CALIFORNIA

Petitioner,

Vv.

NATHAN KEVIN TURNER,

Respondent.

CERTIFICATE OF SERVICE

I, Daniel H. Bookin, a member of the Bar of this Court,

hereby certify that on this 14th day of April, 1988, one copy

of the Motion for Leave to Proceed In Forma Pauperis and one

copy of the Brief in Opposition to the Petition for Writ of

Certiorari in the above-entitled case were mailed, first class

postage prepaid, to John K. Van De Kamp, Attorney General of

the State of California, 110 West A Street, Suite 700, San Diego,

California 92101, Attention: Raquel M. Gonzalez, Deputy Attorney

General, counsel for petitioner herein. I further certify that

all parties required to be served have been served.

YESS eZ

Daniel H. Bookin

Farella, Braun & Martel

235 Montgomery Street

Suite 3000

San Francisco, CA 94104

Telephone: (415) 954-4400

Counsel for Respondent