-SKO (HC) Chiprez v. Biten, No. 1:2011cv00290 - Document 6 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition Without Leave to Amend For Failure to Exhaust State Court Remedies and Failure to State a Claim Cognizable in a Proceeding Pursuant to 28 U.S.C. 2254; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability and to Direct the Clerk to Close the Action, signed by Magistrate Judge Sheila K. Oberto on 3/4/2011, referred to Judge O'Neill. Objections to F&R due by 4/11/2011. (Marrujo, C)
Download PDF
<![CDATA[
-SKO (HC) Chiprez v. Biten Doc. 6 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ELISONDO MADRIZ CHIPREZ, 11 Petitioner, 12 13 14 v. M. D. BITEN, Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 17 1:11-cv—00290-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO EXHAUST STATE COURT REMEDIES AND FAILURE TO STATE A CLAIM COGNIZABLE IN A PROCEEDING PURSUANT TO 28 U.S.C. § 2254 (Doc. 1) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE ACTION 18 OBJECTIONS DEADLINE: THIRTY (30) DAYS 19 20 Petitioner is a state prisoner proceeding pro se and in 21 forma pauperis with a petition for writ of habeas corpus pursuant 22 to 28 U.S.C. § 2254. The matter has been referred to the 23 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 24 Rules 302 and 304. Pending before the Court is the petition, 25 which was filed on February 18, 2011. 26 I. Screening the Petition 27 Rule 4 of the Rules Governing § 2254 Cases in the United 28 1 Dockets.Justia.com 1 States District Courts (Habeas Rules) requires the Court to make 2 a preliminary review of each petition for writ of habeas corpus. 3 The Court must summarily dismiss a petition "[i]f it plainly 4 appears from the petition and any attached exhibits that the 5 petitioner is not entitled to relief in the district court....” 6 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 7 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 8 1990). 9 grounds of relief available to the Petitioner; 2) state the facts Habeas Rule 2(c) requires that a petition 1) specify all 10 supporting each ground; and 3) state the relief requested. 11 Notice pleading is not sufficient; rather, the petition must 12 state facts that point to a real possibility of constitutional 13 error. 14 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 15 Allison, 431 U.S. 63, 75 n. 7 (1977)). 16 that are vague, conclusory, or palpably incredible are subject to 17 summary dismissal. 18 Cir. 1990). 19 Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 20 corpus either on its own motion under Habeas Rule 4, pursuant to 21 the respondent's motion to dismiss, or after an answer to the 22 petition has been filed. 23 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 24 (9th Cir. 2001). 25 Advisory Committee Notes to Habeas Rule Here, Petitioner, an inmate of Kern Valley State Prison 26 (KVSP) in Delano, California, is serving a sentence of “175 TO 27 LIFE” imposed in the Merced County Superior Court in case number 28 30437 on November 30, 2007, and August 7, 2009, for four counts 2 1 of assault on a police officer with a semi-automatic firearm, one 2 count of evading arrest, and one count of being a felon in 3 possession of a firearm. 4 the judgment of conviction, the only issue Petitioner raised was 5 a violation of his Sixth Amendment right based on the sentencing 6 court’s denial of his motion to represent himself at a re- 7 sentencing. 8 affirmed on appeal in July 2010, and Petitioner sought review by 9 the state “Supreme Court,” which was denied on January 3, 2011. 10 (Pet. 2.) (Pet. 1.) On Petitioner’s appeal from Petitioner alleges that the judgment was (Pet. 2-3.) 11 Petitioner alleges that the grounds raised before the 12 California Supreme Court were a request for a forty-five day 13 extension to file a petition for review. 14 alleges that his appellate attorney declined to file a petition 15 for review, and Petitioner submits documentation, consisting of 16 correspondence from his appellate counsel and the Clerk of the 17 California Supreme Court, that establishes that counsel advised 18 Petitioner by letter dated July 29, 2010, that the Court of 19 Appeal (DCA) had upheld Petitioner’s conviction and sentence but 20 that a petition for review was not warranted. 21 However, counsel enclosed with his letter a copy of the DCA’s 22 opinion, and counsel further instructed Petitioner that a 23 petition for review must be filed between the thirty-first and 24 fortieth day after the DCA’s decision, but no later. 25 12.) 26 exhausting state court remedies by filing a petition for review 27 in the California Supreme Court in which all possible federal 28 constitutional claims were raised. (Pet. 3.) Petitioner (Pet. 11.) (Pet. 11- Petitioner was also instructed as to the necessity of 3 (Id.) 1 Additional correspondence attached to the petition reflects 2 that the Clerk of the California Supreme Court wrote Petitioner 3 on January 4, 2011, informing Petitioner that his “document,” 4 received January 3, 2011, in People v. Chiprez, DCA case number 5 F058302, could not be considered by the court because the DCA 6 decision was filed on July 28, 2010, and thus the last day a 7 pleading from Petitioner could have been entertained was 8 September 27, 2010. 9 Petitioner on January 3, 2011, was a request for a forty-five day (Pet. 9.) The document received from 10 extension of time within which to file a petition for review due 11 to lack of access to the prison law library. 12 document was dated “8-13-10,” (pet. 7), but it was received by 13 the Court on January 3, 2011 (id.). 14 proof of service by mail indicating that he deposited the request 15 in the mail at KVSP on September 9, 2010. 16 (Pet. 7.) The Petitioner also submitted a (Pet. 8.) Petitioner raises the following claim in the petition: 17 Petitioner’s Fourteenth Amendment rights were violated by his 18 appellate counsel’s declining to file a petition for review and 19 then by Petitioner’s inability to file timely a petition for 20 review despite his having sought a forty-five-day extension of 21 time within the pertinent time period, due to a prison lockdown. 22 (Pet. 5.) 23 remedies and that his failure was because of a prison lockdown, 24 absence of access to the law library and to a pager system for 25 access to a copy service, and “NO MOVEMENT, SAFETY AND SECURITY.” 26 (Pet. 5.) 27 California Supreme Court for further proceedings. 28 /// Petitioner admitted that he did not exhaust his state Petitioner asks this Court to remand the case to the 4 (Pet. 22.) 1 II. 2 Because the petition was filed after April 24, 1996, the Failure to Exhaust State Court Remedies 3 effective date of the Antiterrorism and Effective Death Penalty 4 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 5 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 6 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). Lindh 7 A petitioner who is in state custody and wishes to challenge 8 collaterally a conviction by a petition for writ of habeas corpus 9 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). 10 The exhaustion doctrine is based on comity to the state court and 11 gives the state court the initial opportunity to correct the 12 state's alleged constitutional deprivations. 13 Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 14 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 15 1988). 16 Coleman v. A petitioner can satisfy the exhaustion requirement by 17 providing the highest state court with the necessary jurisdiction 18 a full and fair opportunity to consider each claim before 19 presenting it to the federal court, and demonstrating that no 20 state remedy remains available. 21 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 22 1996). 23 was given a full and fair opportunity to hear a claim if the 24 petitioner has presented the highest state court with the claim's 25 factual and legal basis. 26 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 27 (1992), superceded by statute as stated in Williams v. Taylor, 28 529 U.S. 362 (2000) (factual basis). 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 5 1 Additionally, the petitioner must have specifically told the 2 state court that he was raising a federal constitutional claim. 3 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 4 (9th Cir.2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. 5 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 6 F.3d 1240, 1241 (9th Cir. 1998). 7 Supreme Court reiterated the rule as follows: 8 9 10 11 12 13 14 15 In Duncan, the United States 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. 16 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule 17 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 18 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 19 Cir. 2001), stating: 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, 6 1 2 3 4 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 federal standards for reviewing the claim may be or how obvious the violation of federal law is. 5 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 6 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 7 2001). 8 In the petition before the Court, Petitioner admits that he 9 failed to raise his claim concerning the alleged denial of due 10 process based on the failure to grant him an extension of time to 11 file a petition for review. Thus, Petitioner admits that he 12 failed to exhaust state remedies as to the sole claim raised in 13 this proceeding. 14 It is established that if the sole ground of the petition 15 was not presented to the California Supreme Court, it is 16 unexhausted, and the petition must be dismissed to provide 17 Petitioner an opportunity to exhaust the claims. 28 U.S.C. § 18 2254(b)(1); Rose, 455 U.S. at 521-22; Raspberry v. Garcia, 448 19 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 20 481 (9th Cir. 2001). 21 III. 22 23 Failure to State a Cognizable Claim concerning State Post-Conviction Proceedings Even if Petitioner’s claim were exhausted, Petitioner has 24 failed to state a claim that is subject to redress in a 25 proceeding pursuant to 28 U.S.C. § 2254. 26 A district court may entertain a petition for a writ of 27 habeas corpus by a person in custody pursuant to the judgment of 28 a state court only on the ground that the custody is in violation 7 1 of the Constitution, laws, or treaties of the United States. 28 2 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 3 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 4 16 (2010) (per curiam). 5 Federal habeas relief is not available to retry a state 6 issue that does not rise to the level of a federal constitutional 7 violation. 8 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 9 errors in the application of state law are not cognizable in Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 10 federal habeas corpus. 11 Alleged Cir. 2002). Souch v. Schiavo, 289 F.3d 616, 623 (9th 12 Thus, it is established that federal habeas relief is not 13 available to redress procedural errors in the state collateral 14 review process. 15 1998) (claim concerning the alleged bias of a judge in a second 16 post-conviction proceeding for relief); 17 F.3d 755, 763 (9th Cir. 1996), vacated on other grounds, Carriger 18 v. Stewart, 132 F.3d 463 (1997) (Brady claim in post-conviction 19 proceedings); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 20 1989) (claim that a state court’s delay in deciding a petition 21 for post-conviction relief violated due process rights). 22 Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. Carriger v. Stewart, 95 Here, Petitioner’s claim concerns not his direct appeal to 23 the intermediate state appellate court, but rather his attempt to 24 seek further review by the state’s highest court after his direct 25 appeal had concluded. 26 conviction proceedings for relief outside of his direct appeal. 27 Petitioner’s claim is not cognizable in a proceeding pursuant to 28 28 U.S.C. § 2254. Petitioner’s claim thus concerns post- 8 1 A petition for habeas corpus should not be dismissed without 2 leave to amend unless it appears that no tenable claim for relief 3 can be pleaded were such leave granted. 4 F.2d 13, 14 (9th Cir. 1971). 5 for Petitioner to state a claim concerning the state post- 6 conviction review process that would be cognizable in this 7 proceeding. Jarvis v. Nelson, 440 Here, it is not logically possible 8 Accordingly, it will be recommended that the petition be 9 dismissed without leave to amend for failure to exhaust state 10 court remedies and failure to state a claim cognizable in a 11 proceeding pursuant to § 2254. 12 IV. 13 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 14 appealability, an appeal may not be taken to the Court of Appeals 15 from the final order in a habeas proceeding in which the 16 detention complained of arises out of process issued by a state 17 court. 18 U.S. 322, 336 (2003). 19 only if the applicant makes a substantial showing of the denial 20 of a constitutional right. 21 petitioner must show that reasonable jurists could debate whether 22 the petition should have been resolved in a different manner or 23 that the issues presented were adequate to deserve encouragement 24 to proceed further. 25 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 26 certificate should issue if the Petitioner shows that jurists of 27 reason would find it debatable whether the petition states a 28 valid claim of the denial of a constitutional right and that 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 9 A 1 jurists of reason would find it debatable whether the district 2 court was correct in any procedural ruling. 3 529 U.S. 473, 483-84 (2000). 4 conducts an overview of the claims in the habeas petition, 5 generally assesses their merits, and determines whether the 6 resolution was debatable among jurists of reason or wrong. 7 It is necessary for an applicant to show more than an absence of 8 frivolity or the existence of mere good faith; however, it is not 9 necessary for an applicant to show that the appeal will succeed. 10 Slack v. McDaniel, In determining this issue, a court Id. Miller-El v. Cockrell, 537 U.S. at 338. 11 A district court must issue or deny a certificate of 12 appealability when it enters a final order adverse to the 13 applicant. 14 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 15 debate whether the petition should have been resolved in a 16 different manner. 17 of the denial of a constitutional right. 18 should decline to issue a certificate of appealability. Petitioner has not made a substantial showing 19 V. 20 Accordingly, it is RECOMMENDED that: 21 1) Accordingly, the Court Recommendations The petition be DISMISSED without leave to amend for 22 failure to exhaust state court remedies and failure to state a 23 claim cognizable in a proceeding pursuant to 28 U.S.C. § 2254; 24 and 25 26 27 28 2) The Court DECLINE to issue a certificate of appealability; and 3) The Clerk be DIRECTED to close the action because dismissal will terminate the proceeding in its entirety. 10 1 These findings and recommendations are submitted to the 2 United States District Court Judge assigned to the case, pursuant 3 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 4 the Local Rules of Practice for the United States District Court, 5 Eastern District of California. 6 being served with a copy, any party may file written objections 7 with the Court and serve a copy on all parties. 8 should be captioned “Objections to Magistrate Judge’s Findings 9 and Recommendations.” Within thirty (30) days after Such a document Replies to the objections shall be served 10 and filed within fourteen (14) days (plus three (3) days if 11 served by mail) after service of the objections. 12 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 13 636 (b)(1)(C). 14 objections within the specified time may waive the right to 15 appeal the District Court’s order. 16 1153 (9th Cir. 1991). The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 17 18 IT IS SO ORDERED. 19 Dated: ie14hj March 4, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 11
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
