(HC) Williams v. Hartley, No. 1:2007cv01579 - Document 3 (E.D. Cal. 2007)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the petition for writ of habeas corpus be DISMISSED. Motion referred to Judge Wanger.Objections to F&R due by 12/10/2007, signed by Judge Gary S. Austin on 11/06/07. (Gil-Garcia, A)

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(HC) Williams v. Hartley Doc. 3 Case 1:07-cv-01579-OWW-GSA Document 3 Filed 11/06/2007 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 PAUL RAY WILLIAMS, 13 Petitioner, 14 v. 15 16 JAMES D. HARTLEY, Warden, 17 Respondent. ) ) ) ) ) ) ) ) ) ) ) 1:07-CV-01579 OWW GSA HC FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS 18 19 20 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 21 On November 1, 1982, Petitioner was convicted in the Merced County Superior Court of 22 second degree murder. See Petition at 2. Petitioner was sentenced to serve an indeterminate term of 23 fifteen years to life in state prison. Id. 24 On October 30, 2007, Petitioner filed the instant federal petition for writ of habeas corpus. 25 DISCUSSION 26 Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part: 27 If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. 28 U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com Case 1:07-cv-01579-OWW-GSA Document 3 Filed 11/06/2007 Page 2 of 4 1 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 2 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 3 dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th 4 Cir.2001). 5 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 6 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 7 exhaustion doctrine is based on comity to the state court and gives the state court the initial 8 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 9 U.S. 722, 731, 111 S.Ct. 2546, 2554-55 (1991); Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 10 1203 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988). 11 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 12 full and fair opportunity to consider each claim before presenting it to the federal court. Picard v. 13 Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 14 1996). A federal court will find that the highest state court was given a full and fair opportunity to 15 hear a claim if the petitioner has presented the highest state court with the claim's factual and legal 16 basis. Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 17 1 (1992) (factual basis). 18 Additionally, the petitioner must have specifically told the state court that he was raising a 19 federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 20 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999); 21 Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In Duncan, the United States Supreme Court 22 reiterated the rule as follows: 23 In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia cd 2 Case 1:07-cv-01579-OWW-GSA 1 Document 3 Filed 11/06/2007 Page 3 of 4 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 2 Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is “self-evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . . In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is. 3 4 5 6 7 8 9 10 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added). 11 Petitioner states he has only sought relief with the Merced County Superior Court. Since 12 Petitioner has not presented his claims to the highest state court, the instant petition is unexhausted 13 and must be dismissed. 28 U.S.C. § 2254(b)(1). 14 The Court further notes that while Petitioner states he is challenging a parole suitability 15 hearing, his claim for relief centers on the plea bargain in his underlying conviction. He contends the 16 sentencing court illegally used a prior conviction to enhance his sentence and he asks that his 17 abstract of judgment be revised. Since Petitioner was sentenced in 1982, these claims are time-barred 18 under the statute of limitations set forth in 28 U.S.C. § 2244(d)(1). 19 RECOMMENDATION 20 Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be 21 DISMISSED. 22 This Findings and Recommendation is submitted to the Honorable Oliver W. Wanger, United 23 States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72-304 24 of the Local Rules of Practice for the United States District Court, Eastern District of California. 25 Within thirty (30) days after being served with a copy, any party may file written objections with the 26 court and serve a copy on all parties. Such a document should be captioned “Objections to 27 Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served and 28 U .S. D istrict C ourt E. D . C alifornia cd 3 Case 1:07-cv-01579-OWW-GSA Document 3 Filed 11/06/2007 Page 4 of 4 1 filed within ten (10) court days (plus three days if served by mail) after service of the objections. 2 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The 3 parties are advised that failure to file objections within the specified time may waive the right to 4 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 6 IT IS SO ORDERED. Dated: 60kij8 November 6, 2007 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia cd 4

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