(HC) Schmidt v. Pierce, No. 1:2005cv00901 - Document 5 (E.D. Cal. 2005)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Petition be Dismissed; Motion referred to Judge Robert E. Coyle, Objections to R&R due by 8/17/2005 signed by Judge William M. Wunderlich on 7/15/05. (Lundstrom, T)

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(HC) Schmidt v. Pierce Doc. 5 Case 1:05-cv-00901-REC-WMW Document 5 Filed 07/15/2005 Page 1 of 4 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 ) ) Petitioner, ) ) v. ) ) ) RICHARD PIERCE, FRESNO ) COUNTY SHERIFF, ) ) Respondent. ) ) ___________________________________ ) LONNIE GLENN SCHMIDT, CV F 05-0901 REC WMW HC FINDINGS AND RECOMMENDATIONS RE PETITION FOR WRIT OF HABEAS CORPUS 19 20 21 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 22 corpus pursuant to 28 U.S.C. § 2254. Petitioner claims that he is being illegally confined in 23 the Fresno County Jail. 24 A petitioner who is in state custody and wishes to collaterally challenge his 25 conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 26 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives 27 the state court the initial opportunity to correct the state's alleged constitutional deprivations. 28 Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-55 (1991); Rose v. Lundy, Dockets.Justia.com Case 1:05-cv-00901-REC-WMW Document 5 Filed 07/15/2005 Page 2 of 4 1 455 U.S. 509, 518, 102 S.Ct. 1198, 1203 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th 2 Cir. 1988). 3 A petitioner can satisfy the exhaustion requirement by providing the highest state 4 court with a full and fair opportunity to consider each claim before presenting it to the federal 5 court. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971); Johnson v. Zenon, 88 6 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given 7 a full and fair opportunity to hear a claim if the petitioner has presented the highest state 8 court with the claim's factual and legal basis. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 9 887, 888 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 10 (1992) (factual basis). Additionally, the petitioner must have specifically told the state court 11 that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66, 115 S.Ct. at 12 888; Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). For example, if a petitioner 13 wishes to claim that the trial court violated his due process rights “he must say so, not only in 14 federal court but in state court.” Duncan, 513 U.S. at 366, 115 S.Ct. at 888. A general 15 appeal to a constitutional guarantee is insufficient to present the "substance" of such a 16 federal claim to a state court. See, Anderson v. Harless, 459 U.S. 4, 7, 103 S.Ct. 276 (1982) 17 (Exhaustion requirement not satisfied circumstance that the "due process ramifications" of an 18 argument might be "self-evident."); Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 19 1074 (1996) (“a claim for relief in habeas corpus must include reference to a specific federal 20 constitutional guarantee, as well as a statement of the facts which entitle the petitioner to 21 relief.”). 22 In the present case, it appears from the petition that Petitioner has not exhausted his 23 state judicial remedies in regard to the claim raised in his habeas corpus petition. 24 Specifically, the court finds that Petitioner cannot have done so, because he was not 25 incarcerated until July 7, 2005, five days before he filed his petition in this court. 26 27 28 2 Case 1:05-cv-00901-REC-WMW 1 Document 5 Filed 07/15/2005 Page 3 of 4 In 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act. 2 Pub.L. No 104-132, 110 Stat. 1214. Under the AEDPA, exhaustion can be waived by 3 respondent. 28 U.S.C. § 2254(b)(C). The Court can also excuse exhaustion if “(I) there is an 4 absence of available State corrective process; or (ii) circumstances exist that render such a 5 process ineffective to protect the rights of the application.” 28 U.S.C. § 2254(b)(1)(B). In 6 this case, respondent has not waived exhaustion. In addition, California provides avenues for 7 Petitioner to pursue state claims. For example, these claims may be presented in a petition 8 for writ of habeas corpus. See Cal. Penal Code §§ 1473 - 14758. 9 Finally, there are not sufficient circumstances in this case for the Court to ignore the 10 United States Supreme Court’s admonishment that comity demands exhaustion and find that 11 California’s corrective processes are ineffective to protect Petitioner’s rights. 12 13 14 Based on the foregoing, IT IS HEREBY RECOMMENDED that this petition be dismissed without prejudice for failure to exhaust state remedies. These Findings and Recommendation are submitted to the assigned United States 15 District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 16 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of 17 California. Within thirty (30) days after being served with a copy, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be 19 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 20 objections shall be served and filed within ten (10) court days (plus three days if served by 21 mail) after service of the objections. The court will then review the Magistrate Judge’s 22 ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file 23 objections within the specified time may waive the right to appeal the District Court’s order. 24 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 26 IT IS SO ORDERED. 27 28 3 Case 1:05-cv-00901-REC-WMW 1 Dated: July 15, 2005 mmkd34 Document 5 Page 4 of 4 /s/ William M. Wunderlich UNITED STATES MAGISTRATE JUDGE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Filed 07/15/2005 4

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