(HC) Wilson v. California Department of Corrections and Rehabilitation, No. 1:2007cv01703 - Document 7 (E.D. Cal. 2007)
Court Description: FINDINGS and RECOMMENDATIONS recommending that the 1 Petition for Writ of Habeas Corpus be DISMISSED without prejudice signed by Judge Gary S. Austin on 12/05/2007. Motion referred to Judge Wanger. Objections to F&R due by 1/9/2008. (Flores, E)
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(HC) Wilson v. California Department of Corrections and Rehabilitation Case 1:07-cv-01703-OWW-GSA Doc. 7 Document 7 Filed 12/06/2007 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 THOMAS L. WILSON, 13 Petitioner, 14 v. 15 16 17 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, 18 Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) 1:07-CV-01703 OWW GSA HC FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS 19 20 21 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 22 On November 26, 2007, Petitioner filed the instant federal petition for writ of habeas corpus 23 in this Court. Upon review of the petition, it appears that Petitioner seeks to challenge a 24 September 20, 2007, decision to revoke parole resulting from his arrest for driving under the 25 influence and possession of alcohol. Petitioner states he was sentenced to six months imprisonment. 26 Petitioner challenges the revocation of parole. 27 DISCUSSION 28 Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part: U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com Case 1:07-cv-01703-OWW-GSA 1 Document 7 Filed 12/06/2007 Page 2 of 4 If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. 2 3 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 4 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 5 dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th 6 Cir.2001). 7 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 8 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 9 exhaustion doctrine is based on comity to the state court and gives the state court the initial 10 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 11 U.S. 722, 731, 111 S.Ct. 2546, 2554-55 (1991); Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 12 1203 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988). 13 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 14 full and fair opportunity to consider each claim before presenting it to the federal court. Picard v. 15 Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 16 1996). A federal court will find that the highest state court was given a full and fair opportunity to 17 hear a claim if the petitioner has presented the highest state court with the claim's factual and legal 18 basis. Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 19 1 (1992) (factual basis). 20 Additionally, the petitioner must have specifically told the state court that he was raising a 21 federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 22 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999); 23 Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In Duncan, the United States Supreme Court 24 reiterated the rule as follows: 25 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 26 27 28 U .S. D istrict C ourt E. D . C alifornia cd 2 Case 1:07-cv-01703-OWW-GSA 1 Filed 12/06/2007 Page 3 of 4 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. 2 3 Document 7 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 4 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); . . . . 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. 5 6 7 8 9 10 11 12 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added). 13 In this case, Petitioner states he has not sought relief with the state courts. Thus, the instant 14 petition is unexhausted and must be dismissed. 28 U.S.C. § 2254(b)(1). 15 RECOMMENDATION 16 Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be 17 DISMISSED without prejudice.1 Petitioner is forewarned that there is a one year limitations period 18 in which Petitioner must file a federal petition for writ of habeas corpus. 28 U.S.C. §2244(d)(1). In 19 most cases, the one year period starts to run on the date the California Supreme Court denies 20 Petitioner’s direct review. Rose v. Lundy, 455 U.S. 509, 521-522. The limitations period is tolled 21 22 23 1 A dismissal for failure to exhaust is not a dismissal on the merits, and Petitioner will not be barred from returning to federal court after Petitioner exhausts available state remedies by 28 U.S.C. § 2244 (b)’s prohibition on filing second petitions. See In re Turner, 101 F.3d 1323 (9 th Cir. 1996). However, the Supreme Court has held that: 24 [I]n the habeas corpus context it would be appropriate for an order dismissing a mixed petition to instruct an applicant that upon his return to federal court he is to bring only exhausted claims. See Fed. Rules Civ. Proc. 41(a) and (b). Once the petitioner is made aware of the exhaustion requirement, no reason exists for him not to exhaust all potential claims before returning to federal court. The failure to comply with an order of the court is grounds for dismissal with prejudice. Fed. Rules Civ. Proc. 41(b). 25 26 27 28 Slack v. McDaniel, 529 U.S. 473, 489 (2000). Therefore, Petitioner is forewarned that in the event he returns to federal court and files a mixed petition of exhausted and unexhausted claims, the petition may be dismissed with prejudice. U .S. D istrict C ourt E. D . C alifornia cd 3 Case 1:07-cv-01703-OWW-GSA Document 7 Filed 12/06/2007 Page 4 of 4 1 while a properly filed request for collateral review is pending in state court. 28 U.S.C. § 2244(d)(2). 2 However, the limitations period is not tolled for the time such an application is pending in federal 3 court. Duncan v. Walker, 531 U.S. 991 (2001). 4 This Findings and Recommendation is submitted to the Honorable Oliver W. Wanger, United 5 States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72-304 6 of the Local Rules of Practice for the United States District Court, Eastern District of California. 7 Within thirty (30) days after being served with a copy, any party may file written objections with the 8 court and serve a copy on all parties. Such a document should be captioned “Objections to 9 Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served and 10 filed within ten (10) court days (plus three days if served by mail) after service of the objections. 11 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The 12 parties are advised that failure to file objections within the specified time may waive the right to 13 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 15 16 IT IS SO ORDERED. Dated: 60kij8 December 5, 2007 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia cd 4
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