(HC) Secretan v Warden, No. 1:2008cv01059 - Document 30 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS recommending that the 16 Motion to Dismiss be Granted signed by Magistrate Judge Dennis L. Beck on 8/31/2009. Referred to Judge Oliver W. Wanger. Objections to F&R due by 10/5/2009. (Sant Agata, S)
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(HC) Secretan v Warden Doc. 30 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 9 10 11 RICHARD SECRETAN, ) ) Petitioner, ) ) v. ) ) ) WARDEN, ) Respondent. ) ____________________________________) 1:08-cv-01059 OWW YNP (DLB) (HC) FINDINGS AND RECOMMENDATION REGARDING RESPONDENT’S MOTION TO DISMISS [Doc. #16] 12 13 14 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 15 Petitioner’s parole was revoked at a parole revocation hearing on April 10, 2008. (Pet. at 1; 16 Mot. to Dismiss at 2). On June 25, 2008, Petitioner filed the instant petition in Federal Court, 17 claiming that his Sixth Amendment rights had been violated because he was not allowed to present 18 his witness at the hearing. (Doc. #1). On September 17, 2008, Respondent filed a motion to dismiss 19 the petition due to Petitioner’s failure to exhaust his claims in state court. (Doc. #16). On December 20 22, 2008, Petitioner filed a document entitled “Denial and Exception to the Return and 21 Memorandum of Points and Authorities in Support Thereof.” (Doc. #25). The Court construes this 22 document to be a response to Respondent’s motion to dismiss. On February 10, 2009, Respondent 23 filed a reply to Petitioner’s response. It is Respondent’s motion to dismiss that will be considered 24 herein. 25 26 27 28 DISCUSSION A. Procedural Grounds for Motion to Dismiss Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to U .S. D istrict C ourt E. D . C alifornia 1 Dockets.Justia.com 1 relief in the district court . . . .” The Advisory Committee Notes to Rule 5 of the Rules Governing § 2 2254 Cases state that “an alleged failure to exhaust state remedies may be raised by the attorney 3 general, thus avoiding the necessity of a formal answer as to that ground.” The Ninth Circuit has 4 referred to a respondent’s motion to dismiss on the ground that the petitioner failed to exhaust state 5 remedies as a request for the Court to dismiss under Rule 4 of the Rules Governing § 2254 Cases. 6 See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (1991); White v. Lewis, 874 F.2d 599, 602-03 (9th 7 Cir. 1989); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982). Based on the Rules 8 Governing Section 2254 Cases and case law, the Court will review Respondent’s motion for 9 dismissal pursuant to its authority under Rule 4. 10 11 B. Exhaustion of State Remedies A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 12 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 13 exhaustion doctrine is based on comity to the state court and gives the state court the initial 14 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 15 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 16 1163 (9th Cir. 1988). 17 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 18 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 19 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 20 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full 21 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 22 claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 23 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 24 Additionally, the petitioner must have specifically told the state court that he was raising a 25 federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 26 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999); 27 Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In Duncan, the United States Supreme Court 28 reiterated the rule as follows: U .S. D istrict C ourt E. D . C alifornia 2 1 2 3 4 5 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. 6 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 7 8 9 10 11 12 13 14 15 16 17 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. Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added). Respondent prays for dismissal of this petition because Petitioner failed to bring his claims 18 before the state court. In his response to the motion to dismiss, Petitioner denies the allegations that 19 he has failed to exhaust his state court remedies but does not offer any proof that he ever filed a 20 petition in state court nor gives any explanation as to why he has not filed in state court. (Resp. at 2). 21 Furthermore, as Respondent points out, Petitioner filed his federal petition a mere three months after 22 his parole was revoked; such a short time period hardly seems adequate to fully exhaust the state 23 appeals process. (Mot. to Dismiss at 2). Because Petitioner did not give the highest court in the state 24 a full and fair opportunity to decide or pass on the constitutional issues alleged, his petition should be 25 dismissed. 26 27 28 RECOMMENDATION Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss be GRANTED. U .S. D istrict C ourt E. D . C alifornia 3 1 This Findings and Recommendation is submitted to the Honorable Oliver W. Wanger, United 2 States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 3 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of 4 California. Within thirty (30) days after being served with a copy of this Findings and 5 Recommendation, any party may file written objections with the Court and serve a copy on all 6 parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 7 Recommendation.” Replies to the Objections shall be served and filed within ten (10) court days 8 (plus three days if served by mail) after service of the Objections. The Finding and Recommendation 9 will then be submitted to the District Court for review of the Magistrate Judge’s ruling pursuant to 10 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified 11 time may waive the right to appeal the Order of the District Court. MartineYlst, 951 F.2d 1153 (9th 12 Cir. 1991). 13 14 IT IS SO ORDERED. Dated: 3b142a August 31, 2009 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia 4
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