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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

HAROLD CARTER,

Petitioner,

v.

DEBBIE ASUNCION,

Respondent.

Case No. 16-cv-07167-JD 

ORDER GRANTING MOTION TO 

DISMISS AND DENYING 

CERTIFICATE OF 

APPEALABILITY

Re: Dkt. No. 9

Harold Carter, a pro se state prisoner, filed a habeas petition under 28 U.S.C. § 2254. 

Respondent originally filed a motion to dismiss on the ground that the petition was barred by the 

statute of limitations. The Court advised Carter to file an opposition and provided an extension of 

time for him to do so, but Carter failed to submit any filings or otherwise communicate with the 

Court. The Court reviewed the motion and ordered both parties to file additional briefing 

regarding exhaustion and equitable tolling. Respondent filed supplemental briefing regarding 

exhaustion and argued that none of the claims have been exhausted. Twice since ordering the 

additional briefing, the Court advised Carter that he must file briefing and that he should address 

whether he seeks a stay if the claims are unexhausted. Carter has not submitted any filings or 

otherwise communicated with the Court. The Court has still looked to the merits of the motion 

and finds that the petition is unexhausted.

BACKGROUND

On June 25, 2012, Carter was sentenced to 25 years to life. Motion to Dismiss (“MTD”) 

Ex. 2. On direct review to the California Court of Appeal, Carter raised a single claim alleging 

that the trial court erred by allowing the prosecution to cross examine him with a prejudicial 

photograph if he were to testify. MTD Ex. 7. On June 27, 2014, the California Court of Appeal 
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affirmed the judgment. MTD Ex. 3. Carter sought review in the California Supreme Court, but 

the court denied review. MTD Exs. 4, 8. Carter filed a state habeas petition in the Alameda 

County Superior Court raising a claim that the prosecution violated Brady v. Maryland, 373 U.S. 

83 (1963). MTD Ex. 5. The superior court denied the petition. MTD Ex. 6. Carter filed no other 

state petitions.

As grounds for federal habeas relief, Carter asserts that: (1) the prosecution violated Brady 

v. Maryland, 373 U.S. 83 (1963); (2) trial counsel was ineffective; and (3) the trial court erred by 

allowing the prosecution to cross examine him with a prejudicial photograph if he were to testify.

EXHAUSTION

Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings 

either the fact or length of their confinement are first required to exhaust state judicial remedies, 

either on direct appeal or through collateral proceedings, by presenting the highest state court 

available with a fair opportunity to rule on the merits of each and every claim they seek to raise in 

federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). 

The exhaustion requirement is satisfied only if the federal claim (1) has been “fairly 

presented” to the state courts, see Picard v. Connor, 404 U.S. 270, 275 (1971); or (2) no state 

remedy remains available, see Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). Peterson v. 

Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) (en banc). State courts must be alerted to the 

fact that prisoners are asserting claims under the United States Constitution in order to be given 

the opportunity to correct alleged violations of federal rights. Duncan v. Henry, 513 U.S. 364, 

365-66 (1995); see Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (characterizing Picard as 

requiring “reference to a specific federal constitutional guarantee” in state court; presentation of 

facts underlying claim not sufficient); Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005) 

(general reference to federal Constitution “as a whole, without specifying an applicable provision, 

or an underlying federal legal theory, does not suffice to exhaust the federal claim.”). Ordinarily a 

state prisoner does not fairly present a claim to a state court if that court must read beyond a 

petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in 

order to find material that does so. Baldwin v. Reese, 541 U.S. 27, 30-34 (2004); see, e.g., id. 
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(where state petitioner did not claim specifically in brief presented to state supreme court that 

appellate counsel’s performance violated federal law, claim was not fairly presented even though 

that court had the opportunity to read lower court opinions which could have shown the claim was 

cast in federal terms). “A litigant wishing to raise a federal issue can easily indicate the federal 

law 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.” Baldwin, 541 U.S. at 32. A claim is “fairly 

presented” only if the petitioner either referenced specific provisions of the federal constitution or 

federal statutes, or cited to federal or state case law analyzing the federal issue. Peterson, 319 

F.3d at 1158 (holding that a federal claim can be fairly presented by citation to state cases 

analyzing the federal issue). Citation of irrelevant federal or state cases—for instance cases 

which discuss federal evidentiary rules or the Fifth Amendment when the federal habeas claim is 

based on the Fourteenth Amendment—does not suffice. Castillo v. McFadden, 399 F.3d 993, 

1001 (9th Cir. 2004). 

For purposes of exhaustion, pro se petitions in state court may, and sometimes should, be 

read differently from counseled petitions. Peterson, 319 F.3d at 1159. “When a document has 

been written by counsel, a court should be able to attach ordinary legal significance to the words 

used in that document.” Id. at 1159. 

DISCUSSION

Carter’s ineffective assistance of counsel claim and Brady claim were never presented to 

the California Supreme Court and are therefore unexhausted. Carter’s claim that the trial court 

erred by allowing the prosecution to cross examine him with a prejudicial photograph was 

presented to the California Supreme Court. Respondent argues that Carter failed to allege any 

federal constitutional basis for the claim, thus no federal claim was exhausted and the entire 

petition is unexhausted.

In his appeal to the California Court of Appeal, Carter, represented by counsel, specifically 

argued that the trial court’s ruling regarding the prejudicial photograph violated the Fifth, Sixth 

and Fourteenth Amendments of the Constitution. MTD Ex. 7 at 15. Carter presented specific 
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arguments and cited to a federal case. Id. at 27-30. The California Court of Appeal held that 

Carter failed to preserve his claim for review on appeal and regardless the claim failed on the 

merits. MTD, Ex. 3 at 3-5. 

However, Carter did not present any claims or arguments in the petition to the California 

Supreme Court regarding a violation of his federal rights. Carter, still represented by counsel, 

argued that the trial court erred with respect to the prejudicial photograph but only argued that it 

was a violation of state law. MTD Ex. 8 at 13-20. Carter cited to no federal cases, federal law or 

constitutional amendments for this aspect of his claim. Id.

1

 

Carter also separately argued to the California Supreme Court that he had preserved his 

claim for review and he did cite to one federal case, Luce v. United States, 469 U.S. 38 (1984). In 

Luce, the Supreme Court adopted as a rule of federal criminal procedure that an error in a ruling 

on the admissibility of a prior offense for purposes of impeachment is preserved for appeal only if 

the defendant testifies and suffers impeachment. Id. at 43. While this issue was argued on appeal 

in the state courts, Carter’s claim in the federal petition is that his federal rights were violated by 

the trial court’s decision regarding the photograph. The California Court of Appeal also looked to 

the merits of the claim in denying it. It is clear from the federal petition that Carter is challenging 

the evidentiary ruling by the trial court as a violation of the federal constitution, but he failed to 

present this claim to the California Supreme Court. The federal claim is unexhausted. See 

Duncan, 513 U.S. at 366. To the extent Carter exhausted a claim challenging the state evidentiary 

ruling under state law and seeks to challenge that ruling in this petition, he fails to present a 

federal claim. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (explaining that “it is not the 

province of a federal habeas court to reexamine state-court determinations on state-law 

questions”).

Carter has presented an entirely unexhausted federal petition, but a district court has the 

discretion to stay a petition that contains only unexhausted claims under the circumstances set 

 

1 Carter did not cite to any denial of due process and even if he had, a petitioner “may not . . . 

transform a state-law issue into a federal one merely by asserting a violation of due process.” 

Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996), as modified on denial of reh’g and reh’g en 

banc (1997).
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forth in Rhines v. Weber, 544 U.S. 269, 277-78 (2005). Mena v. Long, 813 F.3d 907, 909 (9th Cir. 

2016). When faced with a post-AEDPA mixed petition, the Court, before dismissing the petition,

must sua sponte inform the habeas petitioner of the mixed petition deficiency and provide him an 

opportunity to amend the mixed-petition by striking unexhausted claims as an alternative to 

suffering dismissal. Jefferson v. Budge, 419 F.3d 1013, 1016 (9th Cir. 2005) (citing Rhines, 544 

U.S. at 277) (court’s erroneous dismissal of mixed petition entitled petitioner to equitable tolling 

of one-year AEDPA statute of limitations from the date the first habeas petition was dismissed 

until the date the second habeas petition was filed). On three separate occasions the Court 

provided Carter an opportunity to address whether this petition is mixed or unexhausted and 

whether he would seek a stay to exhaust the claims. Docket Nos. 14, 16, 19. Carter has not 

responded and has failed to request a stay. This case is dismissed without prejudice as 

unexhausted. If Carter exhausts his claims in state court he may then file a new federal petition, 

though the Court takes no position if such a petition would be timely.

CONCLUSION

1. Respondent’s motion to dismiss (Docket No. 9) is GRANTED and this case is 

DISMISSED without prejudice as unexhausted.

2. A certificate of appealability (“COA”) will not issue because this is not a case in which 

“jurists of reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court 

declines to issue a COA regarding the procedural holding or the underlying claims of the petition.

IT IS SO ORDERED.

Dated: March 1, 2018

JAMES DONATO

United States District Judge
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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

HAROLD CARTER,

Plaintiff,

v.

DEBBIE ASUNCION,

Defendant.

Case No. 16-cv-07167-JD 

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 

District Court, Northern District of California.

That on March 1, 2018, I SERVED a true and correct copy(ies) of the attached, by placing 

said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by 

depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery 

receptacle located in the Clerk's office.

Harold Carter

G13886

P.O. Box 5101

Delano, CA 93216 

Dated: March 1, 2018

Susan Y. Soong

Clerk, United States District Court

By:________________________

LISA R. CLARK, Deputy Clerk to the 

Honorable JAMES DONATO