Aguirre v. Unknown
Filing
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FINDINGS and RECOMMENDATION to Dismiss 1 Petition for Writ of Habeas Corpus for Failure to Exhaust State Remedies, signed by Magistrate Judge Michael J. Seng on 11/15/11. Referred to Judge Ishii. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ABEL AGUIRRE,
Petitioner,
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v.
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UNKNOWN,
Respondent.
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1:11-cv-01427 AWI MJS HC
FINDINGS AND RECOMMENDATION TO
DISMISS PETITION FOR WRIT OF
HABEAS CORPUS FOR FAILURE TO
EXHAUST STATE REMEDIES
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Petitioner is a state prisoner proceeding pro se with a Petition for Writ of Habeas
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Corpus pursuant to 28 U.S.C. § 2254.
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I.
BACKGROUND
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Petitioner is currently in the custody of the California Department of Corrections. On
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August 25, 2011, Petitioner filed the instant petition for writ of habeas corpus in this Court
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alleging that the judge was unfair in administering his sentence. (Pet. at 3, ECF No. 1.)
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Petitioner made no mention in his petition as to whether his claims had been properly
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presented to the California Supreme Court. On September 27, 2011, this Court ordered
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Petitioner to show cause why the petition should not be dismissed for failure to exhaust state
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remedies. Petitioner was forewarned that the failure to comply with the order would result in
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dismissal of the petition. (Order, ECF No. 7.) The Petitioner was ordered to file the response
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within thirty days of service of the order to show cause. Over thirty days have passed, and
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Petitioner has not responded.
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II.
DISCUSSION
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A.
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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a
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petition if it “plainly appears from the petition and any attached exhibits that the petitioner is
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not entitled to relief in the district court . . . .” The Advisory Committee Notes to Rule 5 of the
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Rules Governing § 2254 Cases state that “an alleged failure to exhaust state remedies may
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be raised by the attorney general, thus avoiding the necessity of a formal answer as to that
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ground.” Based on the Rules Governing Section 2254 Cases, the Court will determine
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Procedural Grounds to Dismiss Petition
whether Petitioner is entitled to relief pursuant to its authority under Rule 4.
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B.
Exhaustion of State Remedies
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A petitioner who is in state custody and wishes to collaterally challenge his conviction
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by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. §
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2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state
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court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman
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v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982).
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A petitioner can satisfy the exhaustion requirement by providing the highest state court
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with a full and fair opportunity to consider each claim before presenting it to the federal court.
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Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971);
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Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). Additionally, the petitioner must have
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specifically told the state court that he was raising a federal constitutional claim. Duncan, 513
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U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir.2000), amended, 247 F.3d 904
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(2001). In Duncan, the United States Supreme Court reiterated the rule as follows:
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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
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Fourteenth Amendment, he must say so, not only in federal court, but in state
court. Duncan, 513 U.S. at 365-366.
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The Ninth Circuit examined the rule further, stating:
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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); . . . .
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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. Lyons, 232 F.3d at 668-669 (italics added).
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As stated above, Petitioner was informed by the Court that the claims of his federal
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petition were unexhausted and was ordered to show cause why the petition should not be
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dismissed. Petitioner has not provided any evidence that he filed a petition with the California
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Supreme Court. As Petitioner has not shown that he has exhausted the claims in the instant
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petition, it is recommended that the petition be dismissed without prejudice1.
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III.
RECOMMENDATION
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Accordingly, it is RECOMMENDED that the petition be DISMISSED without prejudice
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for failure to exhaust state remedies.
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These findings and recommendations are submitted to the United States District Court
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule
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304 of the Local Rules of Practice for the United States District Court, Eastern District of
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California. Within thirty (30) days after being served with a copy, any party may file written
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objections with the Court and serve a copy on all parties. Such a document should be
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captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the
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A dism issal for failure to exhaust is not a dism issal on the m erits, and Petitioner will not be barred from
returning to federal court after Petitioner exhausts available state rem edies by 28 U.S.C. § 2244 (b)’s prohibition
on filing second petitions. See In re Turner, 101 F.3d 1323 (9th Cir. 1996).
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objections shall be served and filed within fourteen (14) days (plus three (3) days if served by
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mail) after service of the objections. The Court will then review the Magistrate Judge's ruling
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pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections
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within the specified time may waive the right to appeal the District Court's order. Martinez v.
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Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
ci4d6
November 15, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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