Carl Vallier v. Corcoran Prison et al
Filing
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ORDER TO SHOW CAUSE by Magistrate Judge Robert N. Block. Accordingly, on or before September 20, 2013, petitioner is ordered to show cause in writing, if any he has, why this action should not be summarily dismissed without prejudice for failure to exhaust state remedies pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Response to Order to Show Cause due by 9/20/2013. (twdb)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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CARL ANTHONY VALLIER,
JR.,
Petitioner,
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vs.
RALPH DIAZ (Warden),
Respondent.
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) Case No. CV 12-9405-JGB (RNB)
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) ORDER TO SHOW CAUSE
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The Court has reviewed the Fourth Amended Petition for Writ of Habeas
18 Corpus filed by appointed counsel herein on August 19, 2013. Petitioner purports to
19 be alleging two grounds for relief: (1) a due process and equal protection claim based
20 on his being compelled to undergo trial in identifiable jail clothing; and (2) an
21 ineffective assistance of appellate counsel claim based on appellate counsel’s failure
22 to raise on direct appeal the foregoing due process and equal protection claim.
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Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless petitioner
24 has exhausted the remedies available in the courts of the State.1 Exhaustion requires
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The habeas statute now explicitly provides that a habeas petition brought
by a person in state custody “shall not be granted unless it appears that-- (A) the
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(continued...)
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1 that the prisoner’s contentions be fairly presented to the state courts and be disposed
2 of on the merits by the highest court of the state. See James v. Borg, 24 F.3d 20, 24
3 (9th Cir.), cert. denied, 513 U.S. 935 (1994); Carothers v. Rhay, 594 F.2d 225, 228
4 (9th Cir. 1979). Moreover, a claim has not been fairly presented unless the prisoner
5 has described in the state court proceedings both the operative facts and the federal
6 legal theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 3657 66, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995); Picard v. Connor, 404 U.S. 270, 2758 78, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). As a matter of comity, a federal court will
9 not entertain a habeas corpus petition unless the petitioner has exhausted the available
10 state judicial remedies on every ground presented in the petition. See Rose v. Lundy,
11 455 U.S. 509, 518-22, 102 S. Ct. 1198, 71 L. Ed. 2d 179 (1982). Petitioner has the
12 burden of demonstrating that he has exhausted available state remedies. See, e.g.,
13 Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). The Ninth Circuit has held that
14 a federal court may raise the failure to exhaust issue sua sponte and may summarily
15 dismiss on that ground. See Stone v. San Francisco, 968 F.2d 850, 856 (9th Cir.
16 1992), cert. denied, 506 U.S. 1081 (1993); Cartwright v. Cupp, 650 F.2d 1103, 1104
17 (9th Cir. 1982) (per curiam), cert. denied, 455 U.S. 1023 (1982); see also Granberry
18 v. Greer, 481 U.S. 129, 134-35, 107 S. Ct. 1671, 95 L. Ed. 2d 119 (1987).
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Here, it appears from the face of the Fourth Amended Petition that petitioner
20 did not present a claim corresponding to his first ground for relief in his sole
21 California Supreme Court filing (i.e., the habeas petition that was filed on February
22 29, 2012 and denied on May 23, 2012). Thus, petitioner has failed to meet his burden
23 of demonstrating that he has exhausted his state remedies with respect his first ground
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26 applicant has exhausted the remedies available in the courts of the State; or (B)(i)
there is an absence of available State corrective process; or (ii) circumstances exist
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that render such process ineffective to protect the rights of the applicant.” 28 U.S.C.
28 § 2254(b)(1).
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1 for relief.
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Petitioner’s second ground for relief is governed by Smith v. Robbins, 528 U.S.
3 259, 276, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000), where the Supreme Court held
4 that California’s Wende procedure provides a criminal appellant with an adequate and
5 effective direct appeal. Further, the Supreme Court held that the Strickland standard
6 also applies to claims of ineffective assistance of appellate counsel based on the
7 failure of appellate counsel to raise particular claims on appeal. See id. at 285. A
8 habeas petitioner must show that, but for appellate counsel’s objectively unreasonable
9 failure to raise the omitted claims, there is a reasonable probability that the petitioner
10 would have prevailed on appeal. In the absence of such a showing, neither Strickland
11 prong is satisfied. See Pollard v. White, 119 F.3d 1430, 1435-37 (9th Cir. 1997);
12 Miller v. Keeney, 882 F.2d 1428, 1434-35 (9th Cir. 1989).
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According to the Fourth Amended Petition, petitioner did raise in his California
14 Supreme Court habeas petition an ineffective assistance of appellate counsel claim
15 based on the failure to raise any issues on appeal. However, if petitioner merely was
16 claiming that his appellate counsel was ineffective for filing a Wende brief, and did
17 not specify the due process and equal protection claim that he now contends appellate
18 counsel rendered deficient performance in omitting, then petitioner did not “fairly
19 present” to the California Supreme Court the ineffective assistance of appellate
20 counsel claim being alleged in the Fourth Amended Petition. The Court notes that
21 petitioner’s appointed counsel has failed to provide the Court with a copy of
22 petitioner’s California Supreme Court habeas petition. As a result, the Court is
23 unable to compare the ineffective assistance of appellate counsel claim being alleged
24 in the Fourth Amended Petition to the ineffective assistance of appellate counsel
25 claim raised in petitioner’s California Supreme Court habeas petition. Without being
26 able to compare the two petitions, the Court has no basis for finding that petitioner
27 has met his burden of demonstrating that he has exhausted his state remedies with
28 respect to this second ground for relief.
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If it were clear here that petitioner’s unexhausted claims were procedurally
2 barred under state law, then the exhaustion requirement would be satisfied. See
3 Castille v. Peoples, 489 U.S. 346, 351-52, 109 S. Ct. 1056, 103 L. Ed. 2d 380 (1989);
4 Johnson v. Zenon, 88 F.3d 828, 831 (9th Cir. 1996); Jennison v. Goldsmith, 940 F.2d
5 1308, 1312 (9th Cir. 1991). However, it is not “clear” here that the California
6 Supreme Court will hold that petitioner’s unexhausted claims are procedurally barred
7 under state law if petitioner were to raise them in a habeas petition to the California
8 Supreme Court (which being an original proceeding is not subject to the same
9 timeliness requirement as a Petition for Review of a Court of Appeal decision). See,
10 e.g., In re Harris, 5 Cal. 4th 813, 825, 21 Cal. Rptr. 2d 373, 855 P.2d 391 (1993)
11 (granting habeas relief where petitioner claiming sentencing error, even though the
12 alleged sentencing error could have been raised on direct appeal); People v. Sorensen,
13 111 Cal. App. 2d 404, 405, 244 P.2d 734 (1952) (noting that claims that fundamental
14 constitutional rights have been violated may be raised by state habeas petition). The
15 Court therefore concludes that this is not an appropriate case for invocation of either
16 statutory “exception” to the requirement that a petitioner’s federal claims must first
17 be fairly presented to and disposed of on the merits by the state’s highest court. See
18 28 U.S.C. § 2254(b)(1)(B).
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Under the total exhaustion rule, if even one of the claims being alleged by a
20 habeas petitioner is unexhausted, the petition must be dismissed. See Rose , 455 U.S.
21 at 522; see also Coleman v. Thompson, 501 U.S. 722, 731, 115 S. Ct. 2546, 115 L.
22 Ed. 2d 640 (1991); Castille, 489 U.S. at 349. Moreover, the Court notes that this does
23 not appear to be an appropriate case for invocation of the stay-and-abeyance
24 procedure authorized by Rhines v. Weber, 544 U.S. 269, 277-78, 125 S. Ct. 1528, 161
25 L. Ed. 2d 440 (2005), or the stay-and-abeyance procedure authorized by Calderon v.
26 United States Dist. Court (Taylor), 134 F.3d 981, 987-88 (9th Cir.), cert. denied, 525
27 U.S. 920 (1998) and Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir. 2004), overruled
28 on other grounds by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007). The
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1 Rhines procedure applies to mixed petitions, and the Kelly procedure applies to fully
2 exhausted petitions. See King v. Ryan, 564 F.3d 1133, 1139-40 (9th Cir.), cert.
3 denied, 130 S. Ct. 214 (2009). The Fourth Amended Petition herein appears to be
4 neither; rather, it appears to be a petition containing solely unexhausted claims. The
5 Ninth Circuit has held in a post-Rhines decision that the stay-and-abeyance procedure
6 does not apply to petitions containing solely unexhausted claims. See Rasberry v.
7 Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).
A petition containing solely
8 unexhausted claims must be dismissed. See Jiminez v. Rice, 276 F.3d 478, 481 (9th
9 Cir. 2001), cert. denied, 538 U.S. 949 (2003).
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Accordingly, on or before September 20, 2013, petitioner is ordered to show
11 cause in writing, if any he has, why this action should not be summarily dismissed
12 without prejudice for failure to exhaust state remedies pursuant to Rule 4 of the Rules
13 Governing Section 2254 Cases in the United States District Courts.
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15 DATED: August 20, 2013
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ROBERT N. BLOCK
UNITED STATES MAGISTRATE JUDGE
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