(HC) Lester Dozier, Jr. v. John C. Marshall, No. 1:2008cv01286 - Document 23 (E.D. Cal. 2009)
Court Description: ORDER Granting 18 20 Respondent's Motion to Dismiss; ORDER Dismissing Petition and Directing Clerk of Court to Enter Judgment; ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY signed by Magistrate Judge Gary S. Austin on 04/16/2009. CASE CLOSED. (Flores, E)
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(HC) Lester Dozier, Jr. v. John C. Marshall Doc. 23 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 LESTER DOZIER, JR., 13 Petitioner, 14 v. 15 16 JOHN C. MARSHALL, Warden, 17 Respondent. ) ) ) ) ) ) ) ) ) ) ) ) 1:08-CV-01286 GSA HC ORDER GRANTING RESPONDENT’S MOTION TO DISMISS [Docs. #18, 20] ORDER DISMISSING PETITION AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. The parties have voluntarily consented to exercise of Magistrate Judge 21 jurisdiction pursuant to 28 U.S.C. § 636(c)(1). 22 BACKGROUND 23 Petitioner is currently in the custody of the California Department of Corrections pursuant to 24 a judgment of the Superior Court of California, County of Fresno, Hon. Gary Hoff presiding, 25 following his conviction by jury trial on May 12, 2005, of attempted murder, shooting at an occupied 26 vehicle, and assault with a semiautomatic firearm. See Lodged Doc. No. 1.1 On June 30, 2005, 27 28 1 “Lodged Document” refers to the documents lodged by Respondent in support of his motion to dismiss. U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 Petitioner was sentenced to serve a determinate prison term of 10 years in state prison. Id. 2 Petitioner appealed the conviction to the California Court of Appeals, Fifth Appellate District 3 (hereinafter “Fifth DCA”). On August 30, 2006, the Fifth DCA affirmed the judgment and corrected 4 a clerical error in the abstract of judgment. See Lodged Doc. No. 3. Petitioner then sought a petition 5 for review in the California Supreme Court. On November 15, 2006, the petition was summarily 6 denied. See Lodged Doc. No. 4. Petitioner did not file any post-conviction collateral challenges with 7 respect to the judgment in the state courts. 8 9 On August 22, 2008, Petitioner filed the instant federal petition for writ of habeas corpus. On February 11, 2009, Respondent filed a motion to dismiss the petition as being filed outside the one- 10 year limitations period prescribed by 28 U.S.C. § 2244(d)(1) and for failure to exhaust state 11 remedies. Petitioner did not file an opposition. 12 13 DISCUSSION A. Procedural Grounds for Motion to Dismiss 14 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 15 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 16 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 17 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if 18 the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the 19 state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 20 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 21 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for 22 state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). 23 Thus, a respondent can file a motion to dismiss after the court orders a response, and the Court 24 should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12. 25 In this case, Respondent's motion to dismiss is based on a violation of 28 U.S.C. 2244(d)(1)'s 26 one-year limitations period and for failure to exhaust state remedies. Accordingly, the Court will 27 review Respondent’s motion to dismiss pursuant to its authority under Rule 4. 28 U .S. D istrict C ourt E. D . C alifornia cd 2 1 B. Limitation Period for Filing a Petition for Writ of Habeas Corpus 2 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 3 1996 (hereinafter “AEDPA”). The AEDPA imposes various requirements on all petitions for writ of 4 habeas corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 5 2063 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 6 586 (1997). 7 In this case, the petition was filed on August 22, 2008, and therefore, it is subject to the 8 provisions of the AEDPA. The AEDPA imposes a one-year period of limitation on petitioners 9 seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, 10 § 2244, subdivision (d) reads: 11 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of – 12 13 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 14 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 15 16 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 17 18 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 19 20 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 21 22 28 U.S.C. § 2244(d). 23 In most cases, the limitations period begins running on the date that the petitioner’s direct 24 review became final. In this case, the petition for review was denied by the California Supreme 25 Court on November 15, 2006. Thus, direct review concluded on February 13, 2007, when the ninety 26 (90) day period for seeking review in the United States Supreme Court expired. Barefoot v. Estelle, 27 463 U.S. 880, 887 (1983); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999); Smith v. Bowersox, 28 159 F.3d 345, 347 (8th Cir.1998). Petitioner had one year until February 13, 2008, absent applicable U .S. D istrict C ourt E. D . C alifornia cd 3 1 tolling, in which to file his federal petition for writ of habeas corpus. However, Petitioner delayed 2 filing the instant petition until August 22, 2008, over six months beyond the due date. Absent any 3 applicable tolling, the instant petition is barred by the statute of limitations. 4 C. Tolling of the Limitation Period Pursuant to 28 U.S.C. § 2244(d)(2) 5 Title 28 U.S.C. § 2244(d)(2) states that the “time during which a properly filed application 6 for State post-conviction or other collateral review with respect to the pertinent judgment or claim is 7 pending shall not be counted toward” the one year limitation period. 28 U.S.C. § 2244(d)(2). In this 8 case, Petitioner did not pursue post-conviction collateral relief. Therefore, he is not entitled to 9 statutory tolling. The petition is untimely and must be dismissed. 10 D. Exhaustion 11 Respondent further contends the petition should be dismissed for failure to exhaust state 12 remedies. A petitioner who is in state custody and wishes to collaterally challenge his conviction by 13 a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). 14 The exhaustion doctrine is based on comity to the state court and gives the state court the initial 15 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 16 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 17 1163 (9th Cir. 1988). 18 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 19 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 20 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 21 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full 22 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 23 claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 24 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 25 Additionally, the petitioner must have specifically told the state court that he was raising a 26 federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 27 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999); 28 Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In Duncan, the United States Supreme Court U .S. D istrict C ourt E. D . C alifornia cd 4 1 reiterated the rule as follows: 2 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. 3 4 5 6 7 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 8 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. 9 10 11 12 13 14 15 16 17 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added). 18 Respondent contends that Grounds Two and Three of the petition are unexhausted. In the 19 petition, Petitioner concedes the claims are unexhausted. Therefore, the instant petition is a mixed 20 petition containing unexhausted claims which must be dismissed. See 28 U.S.C. § 2254(b)(1). 21 E. Certificate of Appealability 22 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 23 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller- 24 El v. Cockrell, 123 S.Ct. 1029, 1039 (2003). The controlling statute in determining whether to issue 25 a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 26 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 27 28 (b) There shall be no right of appeal from a final order in a proceeding to test the U .S. D istrict C ourt E. D . C alifornia cd 5 1 validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 2 3 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from– 4 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 5 6 (B) the final order in a proceeding under section 2255. 7 8 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. 9 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 10 If a court denies a petitioner’s petition, the court may only issue a certificate of appealability 11 “if jurists of reason could disagree with the district court’s resolution of his constitutional claims or 12 that jurists could conclude the issues presented are adequate to deserve encouragement to proceed 13 further.” Miller-El, 123 S.Ct. at 1034; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the 14 petitioner is not required to prove the merits of his case, he must demonstrate “something more than 15 the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 123 S.Ct. at 16 1040. 17 In the present case, the Court finds that reasonable jurists would not find the Court’s 18 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or 19 deserving of encouragement to proceed further. Petitioner has not made the required substantial 20 showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a 21 certificate of appealability. 22 ORDER 23 Accordingly, IT IS HEREBY ORDERED that: 24 1) Respondent’s motion to dismiss the petition is GRANTED; 25 2) The petition for writ of habeas corpus is DISMISSED with prejudice for Petitioner’s 26 failure to comply with 28 U.S.C. § 2244(d)’s one year limitation period and for failure to exhaust 27 state remedies; 28 U .S. D istrict C ourt E. D . C alifornia cd 6 1 2 3) The Clerk of Court is DIRECTED to enter judgment for Respondent and terminate the case; and 3 4) The Court DECLINES to issue a certificate of appealability. 4 5 IT IS SO ORDERED. 6 Dated: 6i0kij April 16, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia cd 7
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