(HC)Johnson v. Lopez, No. 1:2010cv00256 - Document 19 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition Without Prejudice as a Mixed Petition Containing Unexhausted Claims; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability and to Direct the Clerk to Close the Action; Objections Deadline: Thirty (30) Days signed by Magistrate Judge Sheila K. Oberto on 6/22/2011. Referred to Judge Anthony W. Ishii. Objections to F&R due by 7/26/2011. (Sant Agata, S)
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(HC)Johnson v. Lopez Doc. 19 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ERIC JOHNSON, 11 Petitioner, 12 13 14 v. RAUL LOPEZ, 15 Respondent. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—00256-AWI-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT PREJUDICE AS A MIXED PETITION CONTAINING UNEXHAUSTED CLAIMS (Docs. 16, 11, 1) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE ACTION OBJECTIONS DEADLINE: THIRTY (30) DAYS 18 19 Petitioner is a state prisoner proceeding pro se and in 20 forma pauperis with a petition pursuant to 28 U.S.C. § 2254. 21 matter has been referred to the Magistrate Judge pursuant to 28 22 U.S.C. § 636(b)(1) and Local Rules 302 and 303. 23 the Court is the petition, which was filed on February 16, 2010. The Pending before 24 I. 25 Petitioner is an inmate of the California State Prison at Background 26 Corcoran serving a sentence of five years and four months for 27 eight counts of indecent exposure in violation of Cal. Pen. Code 28 § 314.1. Petitioner challenges various aspects of the trial 1 Dockets.Justia.com 1 2 proceedings that resulted in his conviction. On November 24, 2011, the Court found that Petitioner had 3 admitted that only one of his numerous claims had been presented 4 to the California Supreme Court; thus, the petition was a mixed 5 petition containing exhausted and unexhausted claims. 6 informed Petitioner that it must dismiss the petition without 7 prejudice unless Petitioner withdrew the unexhausted claims and 8 proceeded with the exhausted claim in lieu of suffering 9 dismissal. The Court Petitioner was directed to file a motion to withdraw 10 the unexhausted claims within thirty days. 11 informed that if he did not file such a motion, the Court would 12 assume he desired to return to state court to exhaust the 13 unexhausted claims and would therefore dismiss the petition 14 without prejudice. 15 Petitioner was The order was served by mail on Petitioner on November 24, 16 2011. 17 motion to withdraw the admittedly unexhausted claims. 18 Petitioner filed a notice of appeal on January 3, 2011. 19 19, 2011, the Court of Appeals for the Ninth Circuit dismissed 20 the appeal for lack of jurisdiction. Over thirty days passed, but Petitioner did not file a Instead, On April 21 On May 4, 2011, the Court directed Petitioner to show cause 22 in writing within twenty-one days why the petition should not be 23 dismissed without prejudice for failure to exhaust state court 24 remedies. 25 Over twenty-one days have passed, but Petitioner has not shown 26 any cause why the petition should not be dismissed as a mixed 27 petition. 28 in which he pointed out that although the time had passed, the The order was served on Petitioner on the same date. Instead, on May 5, 2011, Petitioner filed a document 2 1 Court had not dismissed the action, which was prejudicing 2 Petitioner’s right to prosecute an appeal. (Doc. 17.) 3 II. 4 A petitioner who is in state custody and wishes to challenge 5 collaterally a conviction by a petition for writ of habeas corpus 6 must exhaust state judicial remedies. 7 The exhaustion doctrine is based on comity to the state court and 8 gives the state court the initial opportunity to correct the 9 state's alleged constitutional deprivations. Dismissal of the Petition 28 U.S.C. § 2254(b)(1). Coleman v. 10 Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 11 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 12 1988). 13 A petitioner can satisfy the exhaustion requirement by 14 providing the highest state court with the necessary jurisdiction 15 a full and fair opportunity to consider each claim before 16 presenting it to the federal court, and demonstrating that no 17 state remedy remains available. 18 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 19 1996). 20 was given a full and fair opportunity to hear a claim if the 21 petitioner has presented the highest state court with the claim's 22 factual and legal basis. 23 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 24 (1992), superceded by statute as stated in Williams v. Taylor, 25 529 U.S. 362 (2000) (factual basis). 26 Picard v. Connor, 404 U.S. 270, A federal court will find that the highest state court Duncan v. Henry, 513 U.S. 364, 365 Additionally, the petitioner must have specifically told the 27 state court that he was raising a federal constitutional claim. 28 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 3 1 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala 2 v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 3 133 F.3d 1240, 1241 (9th Cir. 1998). 4 States Supreme Court reiterated the rule as follows: 5 6 7 8 9 10 11 12 In Duncan, the United 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. 13 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule 14 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 15 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 16 Cir. 2001), stating: 17 18 19 20 21 22 23 24 25 26 27 28 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, see, e.g., Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); Crotts, 73 F.3d at 865. ... 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 4 1 federal standards for reviewing the claim may be or how obvious the violation of federal law is. 2 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 3 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 4 2001). 5 Where none of a petitioner’s claims has been presented to 6 the highest state court as required by the exhaustion doctrine, 7 the Court must dismiss the petition. Raspberry v. Garcia, 448 8 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 9 481 (9th Cir. 2001). Further, where some claims are exhausted 10 and others are not (i.e., a “mixed” petition), the Court must 11 dismiss the petition without prejudice to give Petitioner an 12 opportunity to exhaust the claims if he can do so. Rose, 455 13 U.S. at 510, 521-22; Calderon v. United States Dist. Court 14 (Gordon), 107 F.3d 756, 760 (9th Cir. 1997), en banc, cert. 15 denied, 118 S.Ct. 265 (1997); Greenawalt v. Stewart, 105 F.3d 16 1268, 1273 (9th Cir. 1997), cert. denied, 117 S.Ct. 1794 (1997). 17 However, the Court must give a petitioner an opportunity to amend 18 a mixed petition to delete the unexhausted claims and permit 19 review of properly exhausted claims. Rose v. Lundy, 455 U.S. at 20 520; Calderon v. United States Dist. Ct. (Taylor), 134 F.3d 981, 21 986 (9th Cir. 1998), cert. denied, 525 U.S. 920 (1998); James v. 22 Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). 23 Here, the petition is admittedly a mixed petition. 24 Petitioner has been given an opportunity to amend the petition to 25 withdraw the unexhausted claims to permit review of the properly 26 exhausted claim. However, Petitioner has not withdrawn the 27 unexhausted claims. The Court concludes that Petitioner desires 28 5 1 to return to state court to exhaust the unexhausted claims. 2 Therefore, it will be recommended that the petition be dismissed 3 without prejudice. 4 III. 5 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 6 appealability, an appeal may not be taken to the Court of Appeals 7 from the final order in a habeas proceeding in which the 8 detention complained of arises out of process issued by a state 9 court. 10 11 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A certificate of appealability may issue only if the 12 applicant makes a substantial showing of the denial of a 13 constitutional right. 14 petitioner must show that reasonable jurists could debate whether 15 the petition should have been resolved in a different manner or 16 that the issues presented were adequate to deserve encouragement 17 to proceed further. 18 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 19 certificate should issue if the Petitioner shows that jurists of 20 reason would find it debatable whether the petition states a 21 valid claim of the denial of a constitutional right and that 22 jurists of reason would find it debatable whether the district 23 court was correct in any procedural ruling. 24 529 U.S. 473, 483-84 (2000). 25 § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 26 the claims in the habeas petition, generally assesses their 27 merits, and determines whether the resolution was debatable among 28 jurists of reason or wrong. Id. It is necessary for an 6 1 applicant to show more than an absence of frivolity or the 2 existence of mere good faith; however, it is not necessary for an 3 applicant to show that the appeal will succeed. 4 Cockrell, 537 U.S. at 338. Miller-El v. 5 A district court must issue or deny a certificate of 6 appealability when it enters a final order adverse to the 7 applicant. 8 9 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a 10 different manner. 11 of the denial of a constitutional right. 12 13 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. 14 IV. 15 Accordingly, it is RECOMMENDED that: 16 1) Recommendations The petition for writ of habeas corpus be DISMISSED 17 without prejudice because it is a mixed petition containing both 18 exhausted and unexhausted claims; and 19 20 2) The Court DECLINE to issue a certificate of appealability; and 21 3) 22 These findings and recommendations are submitted to the 23 United States District Court Judge assigned to the case, pursuant 24 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 25 the Local Rules of Practice for the United States District Court, 26 Eastern District of California. 27 being served with a copy, any party may file written objections 28 with the Court and serve a copy on all parties. The Clerk be DIRECTED to close the action. Within thirty (30) days after 7 Such a document 1 should be captioned “Objections to Magistrate Judge’s Findings 2 and Recommendations.” 3 and filed within fourteen (14) days (plus three (3) days if 4 served by mail) after service of the objections. 5 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 6 636 (b)(1)(C). 7 objections within the specified time may waive the right to 8 appeal the District Court’s order. 9 1153 (9th Cir. 1991). Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 10 11 IT IS SO ORDERED. 12 Dated: ie14hj June 22, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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