(HC) Ortiz v. State of California, No. 1:2015cv01545 - Document 5 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Lack of Exhaustion signed by Magistrate Judge Jennifer L. Thurston on 12/16/2015. Referred to Judge O'Neill; Objections to F&R due by 1/11/2016. (Flores, E)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAKAR MANUEL ORTIZ, 12 Petitioner, 13 v. 14 STATE OF CALIFORNIA, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) 17 Case No.: 1:15-cv-01545-JLT ORDER DIRECTING THAT A DISTRICT JUDGE BE ASSIGNED FINDINGS AND RECOMMENDTION TO DISMISS PETITION FOR LACK OF EXHAUSTION ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS 18 On October 21, 2015, the Court ordered Petitioner to show cause why the matter should not be 19 dismissed as unexhausted. (Doc. 4). Petitioner did not respond. Because the Court concludes that the 20 petition is unexhausted, it recommends that it be DISMISSED. 21 I. DISCUSSION 22 A. Preliminary Review of Petition 23 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 24 if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is 25 not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The 26 Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas 27 corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after 28 an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001). 1 1 B. Exhaustion. 2 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 3 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 4 exhaustion doctrine is based on comity to the state court and gives the state court the initial 5 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 6 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th 7 Cir. 1988). 8 9 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 10 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 11 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full 12 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 13 claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 14 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 15 Additionally, the petitioner must have specifically told the state court that he was raising a 16 federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th 17 Cir. 2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); 18 Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). In Duncan, the United States Supreme Court 19 reiterated the rule as follows: 20 21 22 23 24 25 26 27 28 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. Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 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, 2 1 2 3 4 5 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. 6 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons v. 7 Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001). 8 Where none of a petitioner’s claims has been presented to the highest state court as required by 9 the exhaustion doctrine, the Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 10 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The authority of a court to hold a 11 mixed petition in abeyance pending exhaustion of the unexhausted claims has not been extended to 12 petitions that contain no exhausted claims. Raspberry, 448 F.3d at 1154. 13 Petitioner alleges that on March 14, 2014, he pleaded no contest to one count of assault with a 14 semiautomatic firearm. (Doc. 1, pp. 1-2). The Fresno County Superior Court of sentenced him to 15 eleven years in prison. (Id.) Petitioner alleges he attempted to appeal his conviction, but that effort 16 failed because he did not file his notice of appeal timely. (Doc. 1, p. 2). Petitioner alleges that his 17 access to the prison law library was limited and that he had attempted to file the notice of appeal 18 within the time specified under California law. (Id., p. 7). The petition does not allege that Petitioner 19 filed any other appeals in an attempt to exhaust his claims. 20 From the foregoing, it appears that Petitioner has not presented any of his claims to the 21 California Supreme Court as required by the exhaustion doctrine. Because the Court cannot consider a 22 petition that is entirely unexhausted (Rose, 455 U.S. 509 at 521-22 (1982); Calderon v. United States 23 Dist. Court, 107 F.3d 756, 760 (9th Cir. 1997) (en banc), it must recommend that the petition be 24 dismissed. ORDER 25 26 27 Accordingly, the Clerk of the Court is DIRECTED to assign a United States District Judge to this case. 28 3 RECOMMENDATION 1 2 3 4 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be DISMISSED for lack of exhaustion. This Findings and Recommendation is submitted to the United States District Court Judge 5 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 6 Rules of Practice for the United States District Court, Eastern District of California. Within 21 days 7 after being served with a copy of this Findings and Recommendation, any party may file written 8 objections with the Court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be 10 served and filed within 10 days (plus three days if served by mail) after service of the Objections. The 11 Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties 12 are advised that failure to file objections within the specified time may waive the right to appeal the 13 Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 15 16 17 IT IS SO ORDERED. Dated: December 16, 2015 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 4
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