(HC) Wade v. Harley, No. 1:2010cv00566 - Document 12 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 10 Respondent's Motion to Dismiss the 1 Petition be DENIED and Respondent be DIRECTED to File an Answer Addressing the Merits of the 1 Petition, signed by Magistrate Judge Dennis L. Beck on 7/22/2010. Motion Referred to Judge Ishii. Objections to F&R due by 8/26/2010. (Jessen, A)
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(HC) Wade v. Harley Doc. 12 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TOBY WADE, 10 1:10-cv-00566-AWI-DLB (HC) Petitioner, 11 FINDINGS AND RECOMMENDATION REGARDING RESPONDENT’S MOTION TO DISMISS v. 12 [Doc. 10] J. HARLEY, 13 Respondent. 14 / 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254. 17 BACKGROUND1 18 In the instant petition for writ of habeas corpus, Petitioner challenges the Board of Parole 19 Hearings’ November 21, 2008 decision finding him unsuitable for release. 20 Petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior 21 Court challenging the parole decision. The superior court denied the petition in a reasoned 22 decision. Petitioner then filed a petition in the California Court of Appeal, Third Appellate 23 District. The petition was summarily denied. Petitioner filed a petition for review in the 24 California Supreme Court, which was also summarily denied. 25 /// 26 27 1 28 This information is derived from the state court documents attached to Respondent’s motion to dismiss, which are not subject to dispute. 1 Dockets.Justia.com 1 Petitioner filed the instant federal petition for writ of habeas corpus on April 1, 2010. 2 Respondent filed the instant motion to dismiss on June 9, 2010. Petitioner filed an opposition on 3 July 2, 2010. 4 5 DISCUSSION A. 6 Procedural Grounds for Motion to Dismiss Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 7 petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the 8 petitioner is not entitled to relief in the district court . . . .” The Advisory Committee Notes to 9 Rule 5 of the Rules Governing Section 2254 Cases state that “an alleged failure to exhaust state 10 remedies may be raised by the attorney general, thus avoiding the necessity of a formal answer as 11 to that ground.” The Ninth Circuit has referred to a respondent’s motion to dismiss on the 12 ground that the petitioner failed to exhaust state remedies as a request for the Court to dismiss 13 under Rule 4 of the Rules Governing Section 2254 Cases. See, e.g., O’Bremski v. Maass, 915 14 F.2d 418, 420 (1991); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989); Hillery v. Pulley, 15 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982). Based on the Rules Governing Section 2254 16 Cases and case law, the Court will review Respondent’s motion for dismissal pursuant to its 17 authority under Rule 4. 18 B. Exhaustion of State Remedies 19 A petitioner who is in state custody and wishes to collaterally challenge his conviction by 20 a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). 21 The exhaustion doctrine is based on comity to the state court and gives the state court the initial 22 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 23 U.S. 722, 731, 111 S.Ct. 2546, 2554-55 (1991); Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 24 1198, 1203 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988). 25 A petitioner can satisfy the exhaustion requirement by providing the highest state court 26 with a full and fair opportunity to consider each claim before presenting it to the federal court. 27 Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971); Johnson v. Zenon, 88 F.3d 828, 28 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair 2 1 opportunity to hear a claim if the petitioner has presented the highest state court with the claim's 2 factual and legal basis. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888 (1995) (legal 3 basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 4 Additionally, the petitioner must have specifically told the state court that he was raising a 5 federal constitutional claim. Duncan, 513 U.S. at 365-66, 115 S.Ct. at 888; Keating v. Hood, 133 6 F.3d 1240, 1241 (9th Cir.1998). For example, if a petitioner wishes to claim that the trial court 7 violated his due process rights “he must say so, not only in federal court but in state court.” 8 Duncan, 513 U.S. at 366, 115 S.Ct. at 888. A general appeal to a constitutional guarantee is 9 insufficient to present the "substance" of such a federal claim to a state court. See Anderson v. 10 Harless, 459 U.S. 4, 7, 103 S.Ct. 276 (1982) (Exhaustion requirement not satisfied circumstance 11 that the "due process ramifications" of an argument might be "self-evident."); Gray v. 12 Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 1074 (1996) (“a claim for relief in habeas corpus 13 must include reference to a specific federal constitutional guarantee, as well as a statement of the 14 facts which entitle the petitioner to relief.”). 15 Additionally, the petitioner must have specifically told the state court that he was raising 16 a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 17 669 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th 18 Cir.1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In Duncan, the United States 19 Supreme Court reiterated the rule as follows: 20 21 22 23 24 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. 25 26 27 28 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 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, 3 1 2 3 4 5 6 7 223 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. 8 9 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added). Respondent argues that Petitioner failed to exhaust the claims presented in the federal 10 11 petition because he relied exclusively on California law. Respondent’s motion is without merit 12 and ignores the plain reading of the petition to the California Supreme Court. 13 First, Petitioner did not rely exclusively on state law; rather, the petition for review 14 submitted to the California Supreme Court raised the following four claims:2 (1) “Has the court 15 abused their discretion by rendering a decision that was unsupported by any evidence, and was 16 contrary to state parole laws, deprived Petitioner of his liberty interest, and his state and federal 17 due process rights guarantee[d] by the Fourte[n]th Amendment?”; (2) Did the Board abuse their 18 discretion, and abrogate Petitioner[’s] due process and his liberty interest in parole, by rendering 19 a decision contrary to the State’s parole law mandatory language by denying Petitioner parole 20 based on his refusal to admit guilt?”; (3) Did the Board’s finding of lack of insight into the 21 commitment offense abrogate Petitioner[’s] due process because it was arbitrary in the extreme 22 and establish no nexus to Petitioner[’s] current danger?”; and (4) Did the Board abrogate 23 Petitioner’s due process and liberty interest rights as guarantee under the federal and state 24 constitutions, when they failed to duly consider all the enumerated factors set forth as guidelines 25 2 26 27 28 It should be noted that the pleadings of pro se litigants are held to a less stringent standard than pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam) (instructing the federal courts to construe the inartful pleading of pro se actions liberally); Holiday v. Johnston, 313 U.S. 342, 350, 61 S.Ct. 1015 (1941) (pro se petition for habeas corpus “ought not to be scrutinized with technical nicety.”) 4 1 in the state’s parole laws and regulations as criteria for parole?” (Exhibit 5, to Motion.) A fair reading of the petition for review supports the finding that Petitioner presented the 2 3 federal basis of his claim to the California Supreme Court, and Respondent’s argument to the 4 contrary should be rejected. 5 Second, in Hayward v. Marshall, issued prior to the filing of the instant motion to 6 dismiss, the Ninth Circuit specifically found that although there is no independent right to parole 7 under the United States Constitution, the right exists and is created by California’s statutory 8 parole scheme and is subject to review under 28 U.S.C. § 2254. Hayward v. Marshall, 603 F.3d 9 546, 559, 561 (9th Cir. 2010) (en banc) (citing Bd. of Pardons v. Allen, 482 U.S. 369, 371 10 (1987). On May 24, 2010, the Ninth Circuit further clarified its decision in Hayward, stating the 11 following: Through its state statutory and constitutional law, California has created a parole system that independently requires the enforcement of certain procedural and substantive rights, including the right to parole absent ‘some evidence’ of current dangerousness. Hayward, slip op. at 6327-30 (discussing, inter alia, In re Lawrence, 190 F.3d 535 (Cal.2008); In re Shaputis, 190 F.3d 573 (Cal.2008); and In re Rosenkrantz, 59 F.3d 174 (Cal.2002). California law gives rise to a liberty interest on the part of its prisoners covered by its parole system. Having guaranteed the prisoners of the state that they will not be denied a parole release date absent ‘some evidence’ of current dangerousness, California is not permitted under the federal Constitution arbitrarily to disregard the ‘some evidence’ requirement in any particular case. It is therefore our obligation, as we held in Hayward, to review the merits of a federal habeas petition brought by a California prisoner who asserts that the decision to deny him parole was not supported by ‘some evidence’ of his current dangerousness. Under AEDPA, this means that we review ‘whether the California judicial decision approving the governor’s [or parole board’s] decision rejecting parole was an ‘unreasonable application’ of the California ‘some evidence’ requirement, or was ‘based on an unreasonable determination of the facts in light of the evidence.’’ Hayward, slip op. at 6330 (quoting 28 U.S.C. § 2254(d)(1)-(2)). 12 13 14 15 16 17 18 19 20 21 Pearson v. Muntz, No. 08-55728, 2010 WL 2108964 *4 (9th Cir. May 24, 2010) (per curiam) 22 (footnote omitted); see also Cooke v. Solis, No. 06-15444, 2010 WL 2330283 * 6 (9th Cir. June 23 4, 2010) (acknowledging that in Hayward v. Marshall, it was “held that due process challenges to 24 California courts’ application of the ‘some evidence’ requirement are cognizable on federal 25 habeas review under AEDPA.”) Thus, a plain reading of Hayward, and its progeny, supports the finding that Petitioner 26 27 adequately presented the existence of his claims to the California Supreme Court, and 28 /// 5 1 Respondent’s motion should be denied. Indeed, the acceptance of Respondent’s argument would 2 be in direct conflict with the holdings of Hayward, Pearson, and Cooke. RECOMMENDATION 3 4 Based on the foregoing, it is HEREBY RECOMMENDED that: 5 1. Respondent’s motion to dismiss the instant petition be DENIED; and 6 2. Respondent be directed to file an answer addressing the merits of the instant 7 petition within forty-five days from the date of the final order resolving the instant 8 Findings and Recommendation. This Findings and Recommendation is submitted to the assigned United States District 9 10 Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the 11 Local Rules of Practice for the United States District Court, Eastern District of California. 12 Within thirty (30) days after being served with a copy, any party may file written objections with 13 the court and serve a copy on all parties. Such a document should be captioned “Objections to 14 Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served 15 and filed within fourteen (14) days after service of the objections. The Court will then review the 16 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that 17 failure to file objections within the specified time may waive the right to appeal the District 18 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 20 21 IT IS SO ORDERED. Dated: 3b142a July 22, 2010 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 6
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