-EFB (HC) Colson v. Barnes, No. 2:2010cv02674 - Document 17 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/9/11 RECOMMENDING that 8 MOTION to STAY be denied; 12 MOTION to DISMISS be granted; and the Clerk be directed to close the case; referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)
Download PDF
<![CDATA[
-EFB (HC) Colson v. Barnes Doc. 17 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ARTHUR MILTON COLSON, Petitioner, FINDINGS AND RECOMMENDATIONS vs. 12 13 No. CIV S-10-2674 MCE EFB P Respondent. 11 R. BARNES, 14 / 15 16 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 17 U.S.C. § 2254. On February 28, 2011, petitioner filed a motion to stay the petition while he 18 exhausts his claims in state court. Dckt. No. 8. Respondent moved to dismiss the petition for 19 failure to exhaust on March 23, 2011. Dckt. No. 12. Petitioner opposes the motion to dismiss, 20 again requesting that the case be stayed while he exhausts his claims in the California Supreme 21 Court. For the reasons that follow, the undersigned finds that the petition does not qualify for a 22 stay under applicable law and that the motion to dismiss should therefore be granted. 23 I. 24 Exhaustion A district court may not grant a petition for a writ of habeas corpus unless the petitioner 25 has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1). A state will not be 26 deemed to have waived the exhaustion requirement unless the state, through counsel, expressly 1 Dockets.Justia.com 1 2 waives the requirement. 28 U.S.C. § 2254(b)(3). Exhaustion of state remedies requires that petitioners fairly present federal claims to the 3 highest state court, either on direct appeal or through state collateral proceedings, in order to give 4 the highest state court “the opportunity to pass upon and correct alleged violations of its 5 prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (some internal quotations 6 omitted). “[A] state prisoner has not ‘fairly presented’ (and thus exhausted) his federal claims in 7 state court unless he specifically indicated to that court that those claims were based on federal 8 law.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by, 247 F.3d 904 (9th Cir. 9 2000). “[T]he petitioner must make the federal basis of the claim explicit either by citing federal 10 law or the decisions of federal courts, even if the federal basis is self-evident . . . .” Id. (citations 11 omitted); see also Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (“a claim for relief in habeas 12 corpus must include reference to a specific federal constitutional guarantee, as well as a 13 statement of the facts that entitle the petitioner to relief”); Duncan, 513 U.S. at 365-66 (to 14 exhaust a claim, a state court “must surely be alerted to the fact that the prisoners are asserting 15 claims under the United States Constitution”). 16 Petitioner filed two state habeas petitions (one in Shasta County Superior Court and one 17 in the Court of Appeal for the Third Appellate District), but sought the California Supreme 18 Court’s review only through his direct criminal appeal. Resp.’s Mot. to Dism., Docs. Lodg. In 19 Supp. Thereof (hereinafter “Lodged Docs.”) Nos. 1-7. Thus, the court need only look at the brief 20 petitioner filed with the California Supreme Court in his direct appeal to determine whether he 21 has fairly presented the claims raised in the instant petition to that court. In that brief, petitioner 22 argued that his conviction violated a California statute (barring double punishment for a single 23 act) as interpreted by the California Supreme Court and that the trial court erroneously denied 24 petitioner’s motion to dismiss a strike under the state’s recidivist sentencing scheme. Lodged 25 Doc. No. 2. The sole federal claim petitioner raised was an argument that, in failing to grant his 26 motion to dismiss a strike, the trial court had deprived him of due process. Id. at 24-25. 2 1 In the instant petition, petitioner raises the following claims: (1) that his right to be free 2 from double jeopardy was violated because he was punished twice for a single act; (2) that his 3 right to due process was violated because he was given a greater sentence than the legislature 4 intended; (3) that his right to due process was violated because he was coerced to plead guilty; 5 and (4) cumulative error. Dckt. No. 1 at 4-5. None of these claims were included in his petition 6 for review to the California Supreme Court.1 Accordingly, the petition is entirely unexhausted 7 and must be dismissed unless a stay is appropriate. 8 II. 9 Stay In some circumstances, a petitioner may obtain a stay of a federal petition where the 10 petition contains both unexhausted and exhausted claims or where the petitioner seeks to add 11 currently unexhausted claims to a fully exhausted petition. See, e.g., Rhines v. Weber, 544 U.S. 12 269 (2005); King v. Ryan, 564 F.3d 1133, 1134 (9th Cir. 2009). Where the federal petition raises 13 solely claims that have not been exhausted, however, the petition should be dismissed. Coleman 14 v. Thompson, 501 U.S. 722, 731 (1991) (“This Court has long held that a state prisoner’s federal 15 habeas petition should be dismissed if the prisoner has not exhausted state remedies as to any of 16 his federal claims.”); Castillo v. Peoples, 489 U.S. 346, 349 (1989); Raspberry v. Garcia, 448 17 F.3d 1150, 1154 (9th Cir. 2006) (“Once a district court determines that a habeas petition contains 18 only unexhausted claims, it need not inquire further as to the petitioner’s intentions. Instead, it 19 may simply dismiss the habeas petition for failure to exhaust.”); Jiminez v. Rice, 276 F.3d 478, 20 481 (9th Cir. 2001). 21 22 In this case, petitioner concedes that he has not exhausted any of the claims contained in his federal petition in the California Supreme Court as required by § 2254(b)(1). Petitioner 23 24 25 26 1 Petitioner’s multiple-punishment claim in his appeal to the California Supreme Court was based solely on California Penal Code § 654 and People v. Kellett, 63 Cal.2d 822 (1966). Lodged Doc. No. 2 at 1-4, 8-17. Neither authority implicates federal law, and petitioner did not refer to the federal Constitution’s prohibition on double jeopardy or to any federal authorities in his state brief. 3 1 argues that a stay is appropriate under Rhines. However, Rhines addressed the propriety of a 2 stay only where the federal petition contained exhausted as well as unexhausted claims and did 3 not overrule Coleman’s statement that a petition that is entirely unexhausted should be 4 dismissed. Rhines, 544 U.S. at 277; see Raspberry, 448 F.3d at 1154 (“We decline to extend that 5 rule [of Rhines] to the situation where the original habeas petition contained only unexhausted 6 claims, but the record shows that there were exhausted claims that could have been included.”). 7 The instant petition contains only unexhausted claims. Accordingly, it must be dismissed under 8 Coleman. Jiminez, 276 F.3d at 481 (“Once [respondent] moved for dismissal, the district court 9 was obliged to dismiss immediately, as the petition contained no exhausted claims.”). 10 Moreover, even if the court were to apply Rhines here, petitioner has not shown good 11 cause for not first exhausting the claims in the California Supreme Court, as that case requires. 12 Id. A precise standard for determining whether good cause exists under Rhines has not yet been 13 established by the U.S. Supreme Court or the Ninth Circuit. In Pace v. DiGuglielmo, the 14 Supreme Court acknowledged that a petitioner’s reasonable confusion about the timeliness of his 15 state petition amounts to good cause for failing to exhaust. 544 U.S. 408, 416-17 (2005). The 16 Ninth Circuit has further clarified that, to show good cause, a petitioner need not show that 17 extraordinary circumstances caused the failure to exhaust. Jackson v. Roe, 425 F.3d 654, 661-62 18 (9th Cir. 2005). However, a petitioner’s mistaken impression that his counsel had exhausted the 19 claims in state court does not amount to good cause. Wooten v. Kirkland, 540 F.3d 1019 (9th 20 Cir. 2008). 21 Petitioner argues that he did not exhaust his claims because he is legally unskilled and the 22 prison law library does not employ any persons to assist him in the filing of his petition. Pet’r’s 23 Opp’n to Resp.’s Mot. to Dism., Dckt. No. 15, at 2-3. As respondent points out, however, the 24 vast majority of habeas applicants in federal court are unrepresented and legally unskilled. If the 25 court were to find such circumstances amounted to good cause, stays would be available to such 26 applicants as a matter of course, rather than in “limited circumstances,” as Rhines instructs. For 4 1 that reason, the undersigned cannot conclude that lack of legal ability and assistance provide 2 good cause under Rhines for failure to exhaust. See Orozco v. Harrington, No. 1:10-cv-01599 3 MJS HC, 2011 U.S. Dist. LEXIS 54962, *2-6 (E.D. Cal. May 23, 2011); Andris v. Barnes, No. 4 2:11-cv-0758 KJN P, 2011 U.S. Dist. LEXIS 41305, *6-7 (E.D. Cal. Apr. 15, 2011). 5 III. 6 Recommendation Because the petition is wholly unexhausted, a stay is inappropriate and the petition 7 should be dismissed for failure to exhaust under § 2254(b)(1). Accordingly, it is hereby 8 RECOMMENDED that: 9 1. Petitioner’s February 28, 2011 motion to stay (Docket No. 8) be denied; 10 2. Respondent’s March 23, 2011 motion to dismiss (Docket No. 12) be granted; and 11 3. The Clerk be directed to close the case. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 17 within the specified time may waive the right to appeal the District Court’s order. Turner v. 18 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 In his objections petitioner may address whether a certificate of appealability should issue in the 20 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 21 § 2254 Cases (the district court must issue or deny a certificate of appealability when it 22 enters a final order adverse to the applicant). 23 Dated: August 9, 2011. 24 25 26 5
]]>
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.
