(HC) Madden v. Macomber, No. 2:2015cv01750 - Document 17 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 10/27/16 recommending that respondents's unopposed motion to dismiss 15 be granted. MOTION to DISMISS 15 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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(HC) Madden v. Macomber Doc. 17 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEMETRI KAY MADDEN, 12 No. 2:15-cv-1750-JAM-CMK-P Petitioner, 13 vs. 14 J. MACOMBER, 15 ORDER Respondent. 16 17 / Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s 19 unopposed motion to dismiss the petition on the grounds that it is not fully exhausted (Doc. 15). 20 I. 21 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to 22 dismiss a petition if it “plainly appears from the petition and any attached exhibits that the 23 petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing 24 Section 2254 Cases. The Ninth Circuit has allowed respondents to file a motion to dismiss in 25 lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being 26 in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th MOTION TO DISMISS 1 Dockets.Justia.com 1 Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state 2 remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural 3 grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F. Supp. 4 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss 5 after the court orders a response, and the Court should use Rule 4 standards to review the motion. 6 See Hillery, 533 F. Supp. at 1194 & n.12. The petitioner bears the burden of showing that he has 7 exhausted state remedies. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). 8 Here, respondent argues that one of the claims raised in petitioner’s federal habeas 9 petition is unexhausted as petitioner failed to present the claim to the California Supreme Court. 10 Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required 11 before the federal court can grant a claim presented in a habeas corpus case. See Rose v. Lundy, 12 455 U.S. 509 (1982); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. 13 Pliler, 336 F.3d 839 (9th Cir. 2003). “A petitioner may satisfy the exhaustion requirement in 14 two ways: (1) by providing the highest state court with an opportunity to rule on the merits of the 15 claim . . .; or (2) by showing that at the time the petitioner filed the habeas petition in federal 16 court no state remedies are available to the petitioner and the petitioner has not deliberately 17 by-passed the state remedies.” Batchelor v. Cupp , 693 F.2d 859, 862 (9th Cir. 1982) (citations 18 omitted). The exhaustion doctrine is based on a policy of federal and state comity, designed to 19 give state courts the initial opportunity to correct alleged constitutional deprivations. See Picard 20 v. Connor, 404 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518. 21 Regardless of whether the claim was raised on direct appeal or in a post- 22 conviction proceeding, the exhaustion doctrine requires that each claim be fairly presented to the 23 state’s highest court. See Castille v. Peoples, 489 U.S. 346 (1989). Although the exhaustion 24 doctrine requires only the presentation of each federal claim to the highest state court, the claims 25 must be presented in a posture that is acceptable under state procedural rules. See Sweet v. 26 Cupp, 640 F.2d 233 (9th Cir. 1981). Thus, an appeal or petition for post-conviction relief that is 2 1 denied by the state courts on procedural grounds, where other state remedies are still available, 2 does not exhaust the petitioner’s state remedies. See Pitchess v. Davis, 421 U.S. 482, 488 3 (1979); Sweet, 640 F.2d at 237-89.1 4 In addition to presenting the claim to the state court in a procedurally acceptable 5 manner, exhaustion requires that the petitioner make the federal basis of the claim explicit to the 6 state court by including reference to a specific federal constitutional guarantee. See Gray v. 7 Netherland, 518 U.S. 152, 162-63 (1996); see also Shumway v. Payne, 223 F.3d 982, 998 (9th 8 Cir. 2000). It is not sufficient for the petitioner to argue that the federal nature of the claim is 9 self-evident. See Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by 247 F.3d 10 904 (9th Cir. 2001). 11 When faced with petitions containing both exhausted and unexhausted claim 12 (mixed petitions), the Ninth Circuit held in Ford v. Hubbard that the district court is required to 13 give two specific warnings to pro se petitioners: (1) the court could only consider a stay-and- 14 abeyance motion if the petitioner chose to proceed with his exhausted claims and dismiss the 15 unexhausted claims; and (2) federal claims could be time-barred upon return to federal court if he 16 opted to dismiss the entire petition to exhaust unexhausted claims. See 330 F.3d 1086, 1099 (9th 17 Cir. 2003). However, the Supreme Court held in Pliler v. Ford that the district court is not 18 required to give these particular warnings. See 542 U.S. 225, 234 (2004).2 Furthermore, the 19 district court is not required to sua sponte consider stay and abeyance in the absence of a request 20 21 22 23 1 This situation of procedural deficiency is distinguishable from a case presented to the state court using proper procedures but where relief on the merits is precluded for some procedural reason, such as untimeliness or failure to raise the claim on direct appeal. The former represents an exhaustion problem; the latter represents a procedural default problem. 2 24 25 26 The Supreme Court did not address the propriety of Ninth Circuit’s three-step stay-and-abeyance procedure which involves dismissal of unexhausted claims from the original petition, stay of the remaining claims pending exhaustion, and amendment of the original petition to add newly exhausted claims that then relate back to the original petition. See Pliler, 542 U.S. at 230-31 (citing Calderon v. United States Dist. Ct. (Taylor), 134 F.3d 981, 986-88 (9th Cir. 1998)). 3 1 from the petitioner, see Robbins v. Carey, 481 F.3d 1143, 1148 (9th Cir. 2007), or to inform the 2 petitioner that stay and abeyance may be available, see Brambles v. Duncan, 412 F.3d 1066, 3 1070-71 (9th Cir. 2005). Therefore, in the absence of a stay-and-abeyance motion, the district 4 court should dismiss mixed petitions and need not provide any specific warnings before doing so. 5 See Robbins, 481 F.3d at 1147 (citing Rose, 455 U.S. at 510 (holding that the petitioner has the 6 “choice of returning to state court to exhaust his claims or of amending or resubmitting the 7 habeas petition to present only exhausted claims to the district court”)). 8 9 In the instant case, respondent argues claim four of petitioner’s petition is unexhausted, as he failed to present the claim to the California Supreme Court. Specifically, 10 respondent contends that petitioner only filed a direct appeal, including a petition for review in 11 the California Supreme Court, but no state petitions for writ of habeas corpus. In the petition for 12 review filed with the California Supreme Court, petitioner raised three of the claims in his federal 13 petition (two due process claims, and a failure to arraign), but he did not raise his fourth claim, 14 ineffective assistance of counsel and prosecutorial misconduct. As petitioner has not filed an 15 opposition to the motion to dismiss, it appears he concedes that his petition is not fully 16 unexhausted. In addition, due to his lack of opposition, he fails to make any request that the 17 court enter a stay and abeyance order. Thus, dismissal of his petition is appropriate. Petitioner 18 has the choice whether to return to the state court to exhaust his claims, or file an amended 19 petition presenting only exhausted claims to this court. 20 II. 21 Based on the foregoing, the undersigned recommends that respondent’s 22 CONCLUSION unopposed motion to dismiss (Doc. 15) be granted. 23 These findings and recommendations are submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court. Responses to objections shall be filed within 14 days after service of 4 1 objections. Failure to file objections within the specified time may waive the right to appeal. 2 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 5 6 DATED: October 27, 2016 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5
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