(HC) Beard v. People of The State of California, No. 1:2009cv01750 - Document 12 (E.D. Cal. 2010)

Court Description: ORDER GRANTING Petitioner's 11 Motion to Amend the Petition to Name a Proper Respondent; ORDER DIRECTING the Clerk to Change the Named Respondent to Randy Grounds; ORDER to Petitioner to SHOW CAUSE in Thirty (30) Days Why the Petition Should Not be Dismissed for Petitioner's Failure to Exhaust State Remedies re 1 signed by Magistrate Judge Sheila K. Oberto on 9/15/2010. Show Cause Response due by 10/19/2010. (Bradley, A)
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(HC) Beard v. People of The State of California Doc. 12 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ANTHONY MARCEL BEARD, 11 Petitioner, 12 13 14 v. RANDY GROUNDS, 15 Respondent. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—01750-SKO-HC ORDER GRANTING PETITIONER’s MOTION TO AMEND THE PETITION TO NAME A PROPER RESPONDENT (DOC. 11) ORDER DIRECTING THE CLERK TO CHANGE THE NAMED RESPONDENT TO RANDY GROUNDS ORDER TO PETITIONER TO SHOW CAUSE IN THIRTY (30) DAYS WHY THE PETITION SHOULD NOT BE DISMISSED FOR PETITIONER’S FAILURE TO EXHAUST STATE REMEDIES (Doc. 1) 19 20 Petitioner is a state prisoner proceeding pro se and in 21 forma pauperis with a petition for writ of habeas corpus pursuant 22 to 28 U.S.C. § 2254. 23 Petitioner has consented to the jurisdiction of the United States 24 Magistrate Judge to conduct all further proceedings in the case, 25 including the entry of final judgment, by manifesting consent in 26 a signed writing filed by Petitioner on October 13, 2009 (doc. 27 3.) 28 July 21, 2010, to amend the petition, as well as the petition Pursuant to 28 U.S.C. § 636(c)(1), Pending before the Court is Petitioner’s motion, filed on 1 Dockets.Justia.com 1 itself, which was filed in this Court on October 5, 2009. 2 I. 3 Petitioner filed his motion in response to the Court’s order 4 of July 13, 2010, granting Petitioner leave to file the motion in 5 order to name a proper Respondent. 6 Petitioner’s Motion to Amend the Petition Petitioner is incarcerated at the Correctional Training 7 Facility (CTF) at Soledad, California. 8 facility is Randy Grounds. 9 Grounds be named as Respondent in this matter. 10 The warden at that Petitioner requests that Randy A petitioner seeking habeas relief must name the state 11 officer having custody of him or her as the respondent to the 12 petition. 13 Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.1996); Stanley 14 v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.1994). 15 Normally, the person having custody of the prisoner is the warden 16 of the prison because the warden has “day to day control over” 17 the prisoner. 18 (9th Cir.1992). 19 Rule 2(a) of the Rules Governing Section 2254 Cases; Brittingham v. United States, 982. F.2d 378, 279 Therefore, Petitioner’s request is proper. Accordingly, Petitioner’s motion for leave to amend the 20 petition to name a proper Respondent in this matter will be 21 granted, and the Clerk will be directed to change the name of the 22 Respondent to Randy Grounds. 23 II. Screening the Petition 24 Rule 4 of the Rules Governing § 2254 Cases in the United 25 States District Courts (Habeas Rules) requires the Court to make 26 a preliminary review of each petition for writ of habeas corpus. 27 The Court must summarily dismiss a petition "[i]f it plainly 28 appears from the petition and any attached exhibits that the 2 1 petitioner is not entitled to relief in the district court....” 2 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 3 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 4 1990). 5 grounds of relief available to the Petitioner; 2) state the facts 6 supporting each ground; and 3) state the relief requested. 7 Notice pleading is not sufficient; rather, the petition must 8 state facts that point to a real possibility of constitutional 9 error. Habeas Rule 2(c) requires that a petition 1) specify all Rule 4, Advisory Committee Notes, 1976 Adoption; 10 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 11 Allison, 431 U.S. 63, 75 n. 7 (1977)). 12 that are vague, conclusory, or palpably incredible are subject to 13 summary dismissal. 14 Cir. 1990). 15 Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 16 corpus either on its own motion under Habeas Rule 4, pursuant to 17 the respondent's motion to dismiss, or after an answer to the 18 petition has been filed. 19 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 20 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 21 III. Exhaustion of State Court Remedies 22 A petitioner who is in state custody and wishes to challenge 23 collaterally a conviction by a petition for writ of habeas corpus 24 must exhaust state judicial remedies. 25 The exhaustion doctrine is based on comity to the state court and 26 gives the state court the initial opportunity to correct the 27 state's alleged constitutional deprivations. 28 Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 3 28 U.S.C. § 2254(b)(1). Coleman v. 1 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 2 1988). 3 A petitioner can satisfy the exhaustion requirement by 4 providing the highest state court with the necessary jurisdiction 5 a full and fair opportunity to consider each claim before 6 presenting it to the federal court, and demonstrating that no 7 state remedy remains available. 8 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 9 1996). Picard v. Connor, 404 U.S. 270, A federal court will find that the highest state court 10 was given a full and fair opportunity to hear a claim if the 11 petitioner has presented the highest state court with the claim's 12 factual and legal basis. 13 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 14 (1992), superceded by statute as stated in Williams v. Taylor, 15 529 U.S. 362 (2000) (factual basis). 16 Duncan v. Henry, 513 U.S. 364, 365 Additionally, the petitioner must have specifically told the 17 state court that he was raising a federal constitutional claim. 18 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 19 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala 20 v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 21 133 F.3d 1240, 1241 (9th Cir. 1998). 22 States Supreme Court reiterated the rule as follows: 23 24 25 26 27 28 In Duncan, the United 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 4 1 2 3 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. 4 Duncan, 513 U.S. at 365-366. 5 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 6 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 7 Cir. 2001), stating: 8 9 10 11 12 13 14 15 16 17 18 19 The Ninth Circuit examined the rule 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, see, e.g., Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); Crotts, 73 F.3d at 865. ... 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. 20 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 21 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 22 2001). 23 Where none of a petitioner’s claims has been presented to 24 the highest state court as required by the exhaustion doctrine, 25 the Court must dismiss the petition. Raspberry v. Garcia, 448 26 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 27 481 (9th Cir. 2001). 28 5 1 Petitioner states that he did not raise grounds C and D on 2 state habeas (pet. 5), but he does not state whether he raised 3 them in other proceedings before the California Supreme Court. 4 Petitioner’s descriptions of issues raised on appeal and before 5 the California Supreme Court are vague and unclear (pet. 2). 6 Petitioner does not specifically describe the proceedings in the 7 highest state court in which he exhausted his claims. 8 Therefore, upon review of the instant petition for writ of 9 habeas corpus, it appears that Petitioner has not presented his 10 numerous claims to the California Supreme Court. 11 has not presented all of his claims to the California Supreme 12 Court, the Court cannot proceed to the merits of those claims. 13 28 U.S.C. § 2254(b)(1). 14 has presented his claims to the California Supreme Court and 15 simply neglected to inform this Court. 16 If Petitioner It is possible, however, that Petitioner Thus, Petitioner must inform the Court if his claims have 17 been presented to the California Supreme Court, and if possible, 18 provide the Court with a copy of the petition filed in the 19 California Supreme Court, along with a copy of any ruling made by 20 the California Supreme Court. 21 been presented to the California Supreme Court, the Court is 22 unable to proceed to the merits of the petition. Without knowing what claims have 23 IV. Disposition 24 Accordingly, it is ORDERED that: 25 1) Petitioner’s motion for leave to amend the petition to 26 27 28 name Randy Grounds as Respondent in this matter is GRANTED, and 2) The Clerk of Court is DIRECTED to change the name of Respondent to Randy Grounds; and 6 1 3) Petitioner is ORDERED to show cause why the petition 2 should not be dismissed for Petitioner’s failure to exhaust state 3 remedies. 4 have been presented to the California Supreme Court within thirty 5 (30) days of the date of service of this order. Petitioner is ORDERED to inform the Court what claims 6 Petitioner is forewarned that failure to follow this order 7 will result in dismissal of the petition pursuant to Local Rule 8 110. 9 10 IT IS SO ORDERED. 11 Dated: ie14hj September 15, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7