Amber J Robles v. Walter Miller
Filing
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ORDER TO SHOW CAUSE by Magistrate Judge Marc L. Goldman, WHY PETITION SHOULD NOT BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO EXHAUST STATE REMEDIES: (See document for details.) Because it appears that Petitioner did not present either of the claims presented in this petition to the California Supreme Court, the petition is subject to dismissal. However, Petitioner will be given the opportunity to address this issue. Accordingly, it is ORDERED that Petitioner show cause, on or before May 24, 20 12, why this petition should not be dismissed without prejudice for failure to exhaust state remedies. If Petitioner does not file a timely response to this order, the current petition will be subject to dismissal without prejudice and without further notice. (rla)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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EASTERN DIVISION
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AMBER ROBLES,
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Petitioner,
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v.
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WALTER MILLER, Warden,
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Respondent.
Case No. EDCV 12-00195-GAF (MLG)
ORDER TO SHOW CAUSE WHY PETITION
SHOULD NOT BE DISMISSED WITHOUT
PREJUDICE FOR FAILURE TO EXHAUST
STATE REMEDIES
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I. Facts and Procedural History
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This petition for writ of habeas corpus was filed on February
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7, 2012 pursuant to 28 U.S.C. § 2254. Petitioner Amber Robles claims
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that her trial counsel was ineffective in allowing her to plead
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guilty while under the influence of psychotropic medications and in
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failing to investigate Petitioner’s competency. (Pet. at 6.)
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The facts show that on December 14, 2009, Petitioner plead
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guilty in the Riverside County Superior Court to torture (Cal. Penal
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Code
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289(a)(1)),
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245(a)(1)), robbery (Cal. Penal Code § 211), residential burglary
§
206),
forcible
assault
sexual
with
a
penetration
deadly
weapon
(Cal.
Penal
Code
§
(Cal.
Penal
Code
§
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(Cal. Penal Code § 459), and kidnaping (Cal. Penal Code § 207). On
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February 5, 2010, Petitioner was sentenced to a term of fifteen years
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to life. (Reporter’s Transcript (“RT”) at 3391.) Petitioner did not
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file a direct appeal to the California Court of Appeal.
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Petitioner filed a petition for writ of habeas corpus in the
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Riverside
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ineffective assistance of counsel because her attorney “made me
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believe that takeing [sic] a plea was the only choice I had.”
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(Lodgment 4.) On June 27, 2011, the petition was denied for failure
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to state a prima facie basis for relief, as the factual conclusions
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contained in the petition were not supported by specific details and
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were unsupported by the record. (Lodgment 5.)
County
Superior
Court
on
July
29,
2010,
claiming
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Petitioner next filed a habeas corpus petition in the California
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Court of Appeal on July 15, 2011. She again claimed ineffective
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assistance because counsel caused Petitioner to think that she had
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to agree to the plea, and also because at the time of the plea,
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Petitioner was taking psychotropic medication and did not understand
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the consequences of signing the plea. (Lodgment 6). On August 30,
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2011, the petition was denied because Petitioner had not provided the
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lower court record or other documentation in support of her claims.
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(Lodgment 8.)
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On December 9, 2011, Petitioner apparently filed an application
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for review in the California Supreme Court. However, on December 14,
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2011, the application was returned to Petitioner without being filed
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because it was untimely and the Court had lost jurisdiction to hear
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such an application pursuant to Cal. Rules of Court 8.500(e).
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(Lodgment 9.)
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//
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II. Analysis
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On April 20, 2012, Respondent filed an answer addressing the
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merits of the claims contained in the petition. Notwithstanding, the
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Court has determined that the claims in the petition have never been
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considered by the California Supreme Court.
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The Antiterrorism and Effective Death Penalty Act of 1996
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(“AEDPA”) provides that a state prisoner’s petition for writ of
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habeas corpus shall not be granted unless it appears that the
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prisoner has exhausted available state remedies as to all of the
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claims in the petition. 28 U.S.C. § 2254(b)-(c); see also Rose v.
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Lundy, 455 U.S. 509, 518 (1982); Hayes v. Kincheloe, 784 F.2d 1434,
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1437 (9th Cir. 1986) (citing Carothers v. Rhay, 594 F.2d 225, 228
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(9th Cir. 1979)). “For reasons of federalism, 28 U.S.C. § 2254
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requires federal courts to give the states an initial opportunity to
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correct
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Kellotat v. Cupp, 719 F.2d 1027, 1029 (9th Cir. 1983); see also
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Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006). Each
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federal constitutional claim must be presented to the state supreme
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court even if that court’s review is discretionary. O'Sullivan v.
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Boerckel, 526 U.S. 838, 847 (1999); Insyxiengmay v. Morgan, 403 F.3d
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657, 667-68 (9th Cir. 2005). Such a requirement affords state courts
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an opportunity to consider and correct any violation of federal law,
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thus demonstrating respect for our dual judicial system while also
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providing a complete record of a petitioner’s federal claim as
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litigated in the state system. Rose, 455 U.S. at 518-19.
alleged
violations
of
its
prisoners’
federal
rights.”
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The exhaustion doctrine requires a petitioner to provide the
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state courts with one full opportunity to rule on her federal habeas
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claims
before
presenting
those
claims
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to
the
federal
courts.
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O’Sullivan, 526 U.S. at 844-45; Insyxiengmay, 403 F.3d at 667. A
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petitioner must alert the state courts to the fact that she is
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asserting a federal claim in order to fairly and fully present the
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legal basis of the claim. Duncan v. Henry, 513 U.S. 364, 365-66
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(1995); Reynoso, 462 F.3d at 1109; Insyxiengmay, 403 F.3d at 668.
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The petitioner must make the federal basis of the claim explicit
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either
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constitution
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Insyxiengmay, 403 F.3d at 668.
by
specifying
or
particular
statutes,
or
by
provisions
citing
to
of
the
federal
federal
case
law.
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Where none of a petitioner's claims has been presented to the
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highest state court as required by the exhaustion doctrine, the Court
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must dismiss the petition. Rasberry v. Garcia, 448 F.3d 1150, 1154
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(9th Cir.2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001).
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While the Court may hold a mixed petition containing both exhausted
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and
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unexhausted claims, this authority has not been extended to petitions
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that contain no exhausted claims. Rasberry, 448 F.3d at 1154.
unexhausted
claims
in
abeyance
pending
exhaustion
of
the
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Here, Petitioner has not exhausted either of her claims for
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relief in the instant petition in the California Supreme Court, by
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way of direct review or a petition for post-conviction relief.
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Petitioner raised her claim that counsel was ineffective in allowing
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her to plead guilty while under medication in the California Court
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of Appeal. (Lodgment 6.) While she attempted to appeal the court of
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appeal’s denial of this claim to the California Supreme Court, that
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appeal was untimely and the supreme court never assumed jurisdiction
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over the case. Instead, the clerk of the court returned Petitioner’s
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documents to her unfiled. (Lodgment 9.) Therefore, Petitioner’s claim
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that counsel was ineffective in allowing her to plead guilty under
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medication was never presented to the California Supreme Court and
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is unexhausted.
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Petitioner’s second claim, that counsel was ineffective due to
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his failure to investigate Petitioner’s competency, was not presented
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in any of Petitioner’s state habeas corpus petitions. Thus, this
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claim would be unexhausted even if Petitioner’s application for
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review to the California Supreme Court had been timely.
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III. Order
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Because it appears that Petitioner did not present either of the
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claims presented in this petition to the California Supreme Court,
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the petition is subject to dismissal. However, Petitioner will be
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given the opportunity to address this issue. Accordingly, it is
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ORDERED that Petitioner show cause, on or before May 24, 2012, why
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this petition should not be dismissed without prejudice for failure
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to exhaust state remedies.
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If Petitioner does not file a timely response to this order, the
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current petition will be subject to dismissal without prejudice and
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without further notice.
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Dated: May 3, 2012
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Marc L. Goldman
United States Magistrate Judge
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