(HC) Valencia v. Director of CDCR, No. 1:2011cv01066 - Document 7 (E.D. Cal. 2011)
Court Description: ORDER to Petitioner to SHOW CAUSE in Thirty (30) Days Why the Petition Should Not Be Dismissed For Petitioner's Failure to Exhaust State Remedies; ORDER GRANTING Petitioner Leave to File a Motion to Amend the Petition and Name a Proper Respondent No Later Than Thirty (30) Days After the Date of Service of This Order, signed by Magistrate Judge Sheila K. Oberto on 6/29/2011. Show Cause Response and Motion to Amend due by 8/1/2011. (Marrujo, C)
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(HC) Valencia v. Director of CDCR Doc. 7 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 DAVID J. VALENCIA, JR., 11 Petitioner, 12 v. 13 14 DIRECTOR OF CORRECTIONS AND REHABILITATION, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) 17 1:11-cv—01066-SKO-HC ORDER TO PETITIONER TO SHOW CAUSE IN THIRTY (30) DAYS WHY THE PETITION SHOULD NOT BE DISMISSED FOR PETITIONER’S FAILURE TO EXHAUST STATE REMEDIES (Doc. 1) ORDER GRANTING PETITIONER LEAVE TO FILE A MOTION TO AMEND THE PETITION AND NAME A PROPER RESPONDENT NO LATER THAN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER (Doc. 1) 18 Petitioner is a state prisoner proceeding pro se with a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 The matter has been referred to the Magistrate Judge pursuant to 21 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303. Pending before 22 the Court is Petitioner’s petition, which was filed on June 22, 23 2011, and transferred to this Court on June 27, 2011. 24 I. Screening the Petition 25 Rule 4 of the Rules Governing § 2254 Cases in the United 26 States District Courts (Habeas Rules) requires the Court to make 27 a preliminary review of each petition for writ of habeas corpus. 28 1 Dockets.Justia.com 1 The Court must summarily dismiss a petition "[i]f it plainly 2 appears from the petition and any attached exhibits that the 3 petitioner is not entitled to relief in the district court....” 4 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 5 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 6 1990). 7 grounds of relief available to the Petitioner; 2) state the facts 8 supporting each ground; and 3) state the relief requested. 9 Notice pleading is not sufficient; rather, the petition must Habeas Rule 2(c) requires that a petition 1) specify all 10 state facts that point to a real possibility of constitutional 11 error. 12 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 13 Allison, 431 U.S. 63, 75 n. 7 (1977)). 14 that are vague, conclusory, or palpably incredible are subject to 15 summary dismissal. 16 Cir. 1990). 17 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 18 corpus either on its own motion under Habeas Rule 4, pursuant to 19 the respondent's motion to dismiss, or after an answer to the 20 petition has been filed. 21 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 22 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 23 II. 24 A petitioner who is in state custody and wishes to challenge 25 collaterally a conviction by a petition for writ of habeas corpus 26 must exhaust state judicial remedies. 27 The exhaustion doctrine is based on comity to the state court and 28 gives the state court the initial opportunity to correct the Exhaustion of State Court Remedies 2 28 U.S.C. § 2254(b)(1). 1 state's alleged constitutional deprivations. 2 Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 3 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 4 1988). 5 Coleman v. A petitioner can satisfy the exhaustion requirement by 6 providing the highest state court with the necessary jurisdiction 7 a full and fair opportunity to consider each claim before 8 presenting it to the federal court, and demonstrating that no 9 state remedy remains available. Picard v. Connor, 404 U.S. 270, 10 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 11 1996). 12 was given a full and fair opportunity to hear a claim if the 13 petitioner has presented the highest state court with the claim's 14 factual and legal basis. 15 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 16 (1992), superceded by statute as stated in Williams v. Taylor, 17 529 U.S. 362 (2000) (factual basis). 18 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 19 state court that he was raising a federal constitutional claim. 20 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 21 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala 22 v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 23 133 F.3d 1240, 1241 (9th Cir. 1998). 24 States Supreme Court reiterated the rule as follows: 25 26 27 28 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 3 1 2 3 4 5 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. 6 Duncan, 513 U.S. at 365-366. 7 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 8 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 9 Cir. 2001), stating: 10 11 12 13 14 15 16 17 18 19 20 21 The Ninth Circuit examined the rule 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 federal standards for reviewing the claim may be or how obvious the violation of federal law is. 22 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 23 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 24 2001). 25 Where none of a petitioner’s claims has been presented to 26 the highest state court as required by the exhaustion doctrine, 27 the Court must dismiss the petition. 28 4 Raspberry v. Garcia, 448 1 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 2 481 (9th Cir. 2001). 3 petition in abeyance pending exhaustion of the unexhausted claims 4 has not been extended to petitions that contain no exhausted 5 claims. 6 The authority of a court to hold a mixed Raspberry, 448 F.3d at 1154. Where some claims are exhausted and others are not (i.e., a 7 “mixed” petition), the Court must dismiss the petition without 8 prejudice to give Petitioner an opportunity to exhaust the 9 unexhausted claims if he can do so. Rose, 455 U.S. at 510, 521- 10 22; Calderon v. United States Dist. Court (Gordon), 107 F.3d 756, 11 760 (9th Cir. 1997), en banc, cert. denied, 118 S.Ct. 265 (1997); 12 Greenawalt v. Stewart, 105 F.3d 1268, 1273 (9th 13 cert. denied, 117 S.Ct. 1794 (1997). 14 give a petitioner an opportunity to amend a mixed petition to 15 delete the unexhausted claims and permit review of properly 16 exhausted claims. 17 United States Dist. Ct. (Taylor), 134 F.3d 981, 986 (9th Cir. 18 1998), cert. denied, 525 U.S. 920 (1998); James v. Giles, 221 19 F.3d 1074, 1077 (9th Cir. 2000). Cir. 1997), However, the Court must Rose v. Lundy, 455 U.S. at 520; Calderon v. 20 Here, Petitioner alleges that he is an inmate of the San 21 Quentin State Prison serving a sentence of twenty-five (25) years 22 to life imposed on January 6, 2010, in the Tuolumne County 23 Superior Court upon Petitioner’s conviction of corporal injury to 24 a spouse in violation of Cal. Pen. Code § 273.5(a). 25 raises the following claims in the petition: 26 court’s failure to instruct on the defense of necessity violated 27 his right to due process of law; 2) his trial counsel’s failure 28 to request an instruction on the necessity defense violated 5 Petitioner 1) the trial 1 Petitioner’s rights under the Sixth and Fourteenth Amendments to 2 the effective assistance of counsel; and 3) the sentencing 3 court’s failure to strike at least one prior conviction resulted 4 in a sentence that was disproportionately severe and grossly 5 excessive in violation of Petitioner’s right to due process of 6 law. 7 (Pet. 6-11.) With respect to these claims, Petitioner alleges that he 8 exhausted his state court remedies. 9 a copy of an order of the California Supreme Court denying a Petitioner has also attached 10 petition for review on May 11, 2011. 11 Petitioner has exhausted his state court remedies. 12 It thus appears that However, Petitioner also states that there is presently 13 pending in the state trial court a petition for writ of habeas 14 corpus. 15 ineffective assistance of counsel under the Sixth and Fourteenth 16 Amendments based on the trial court’s admission of unspecified 17 evidence concerning a nine-year-old matter involving a negotiated 18 disposition that was used to impeach witness Kendall Long. 19 13.) 20 petition form concerning whether the presently pending petition 21 is “for” the judgment he is challenging in the petition that is 22 before the Court. 23 This petition alleges violations of due process and (Pet. Petitioner responded affirmatively to a question on the (Id.) As to the claims concerning the impeachment evidence, 24 Petitioner states that he has not received a docket number yet 25 for his petition. 26 begun to exhaust his state court remedies as to these additional 27 claims concerning impeachment evidence, and thus he has not 28 exhausted his state court remedies concerning these claims. Thus, it is clear that Petitioner has just 6 1 Therefore, upon review of the instant petition for writ of 2 habeas corpus, it appears that Petitioner has not presented his 3 claims concerning impeachment evidence to the California Supreme 4 Court. 5 California Supreme Court, the Court cannot proceed to the merits 6 of those claims. 7 however, that Petitioner has presented all his claims to the 8 California Supreme Court and has simply neglected to inform this 9 Court. If Petitioner has not presented all of his claims to the 28 U.S.C. § 2254(b)(1). It is possible, 10 Thus, Petitioner must inform the Court if his claims 11 concerning the impeachment evidence have been presented to the 12 California Supreme Court, and if possible, provide the Court with 13 a copy of the petition filed in the California Supreme Court, 14 along with a copy of any ruling made by the California Supreme 15 Court. 16 III. 17 In this case, Petitioner named as Respondent the Director of 18 Corrections and Rehabilitation, which the Court understands to be 19 the Director of the California Department of Corrections and 20 Rehabilitation (CDCR). 21 Quentin State Prison. 22 Martel. 23 Failure to Name Custodian as Respondent Petitioner is incarcerated at the San The warden at that facility is Michael A petitioner seeking habeas corpus relief under 28 U.S.C. 24 § 2254 must name the state officer having custody of him as the 25 respondent to the petition. 26 Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California 27 Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). 28 person having custody of an incarcerated petitioner is the warden Habeas Rule 2(a); Ortiz-Sandoval v. 7 Normally, the 1 of the prison in which the petitioner is incarcerated because the 2 warden has "day-to-day control over" the petitioner and thus can 3 produce the petitioner. 4 378, 379 (9th Cir. 1992); see also, Stanley v. California Supreme 5 Court, 21 F.3d 359, 360 (9th Cir. 1994). 6 Brittingham v. United States, 982 F.2d Petitioner’s failure to name a proper respondent could 7 require dismissal of his habeas petition for lack of 8 jurisdiction. 9 give Petitioner the opportunity to cure this defect by amending 10 the petition to name a proper respondent, such as the warden of 11 his facility. 12 2004). 13 file an amended petition. 14 entitled "Motion to Amend the Petition to Name a Proper 15 Respondent" wherein Petitioner may name the proper respondent in 16 this action. Stanley, 21 F.3d at 360. However, the Court will See, In re Morris, 363 F.3d 891, 893-94 (9th Cir. In the interest of judicial economy, Petitioner need not Instead, Petitioner may file a motion 17 IV. 18 Accordingly, it is ORDERED that: 19 1) Disposition Petitioner is ORDERED to show cause why the petition 20 should not be dismissed for Petitioner’s failure to exhaust state 21 remedies as to all his claims. 22 the Court within thirty (30) days of the date of service of this 23 order whether or not his claims concerning impeachment evidence 24 have been presented to the California Supreme Court; and 25 2) Petitioner is ORDERED to inform Petitioner is GRANTED thirty (30) days from the date of 26 service of this order in which to file a motion to amend the 27 instant petition and name a proper respondent. 28 the petition and state a proper respondent may result in a 8 Failure to amend 1 recommendation that the petition be dismissed for lack of 2 jurisdiction. 3 Petitioner is forewarned that failure to follow this order 4 will result in dismissal of the petition pursuant to Local Rule 5 110. 6 7 IT IS SO ORDERED. 8 Dated: ie14hj June 29, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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