(HC) Parks v. State of California, No. 1:2010cv00829 - Document 10 (E.D. Cal. 2010)

Court Description: ORDER GRANTING Petitioner's 9 Motion to Amend the Petition; ORDER DIRECTING the Clerk to Change the Name of the Respondent to Kathleen Allison; 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 9/7/2010. Show Cause Response due by 10/12/2010. (Bradley, A)
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(HC) Parks v. State of California Doc. 10 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 STEVEN DEAN PARKS, 11 Petitioner, 12 13 14 15 v. STATE OF CALIFORNIA, et al., Respondents. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—00829-SKO-HC ORDER GRANTING PETITIONER’S MOTION TO AMEND THE PETITION (DOC. 9) ORDER DIRECTING THE CLERK TO CHANGE THE NAME OF THE RESPONDENT TO KATHLEEN ALLISON 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 Petitioner is a state prisoner proceeding pro se and in 20 forma pauperis with a petition for writ of habeas corpus pursuant 21 to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), 22 Petitioner has consented to the jurisdiction of the United States 23 Magistrate Judge to conduct all further proceedings in the case, 24 including the entry of final judgment, by manifesting consent in 25 a signed writing filed by Petitioner on May 27, 2010 (doc. 7). 26 Pending before the Court are the Petitioner’s motion to amend the 27 petition to name a proper respondent (doc. 9), and the petition 28 1 Dockets.Justia.com 1 (doc. 1). 2 I. 3 Petitioner’s motion to amend was filed on August 4, 2010, in Motion to Amend the Petition 4 response to the Court’s order of July 26, 2010, granting 5 Petitioner leave to file the motion. 6 submitted the motion on a petition form, the form appears to 7 repeat all the information in the original petition but omits the 8 exhibits. 9 Petitioner’s document as the motion to amend the petition Although Petitioner The Court therefore understands and CONSTRUES 10 contemplated by the Court’s order of July 26, 2010, and not as an 11 amended petition itself. 12 Petitioner requests that Kathleen Allison be named as 13 Respondent in this matter. 14 the California Substance Abuse Treatment Facility in Corcoran, 15 where Petitioner is housed. 16 Kathleen Allison acts as warden at A petitioner seeking habeas relief must name the state 17 officer having custody of him or her as the respondent to the 18 petition. 19 Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.1996); Stanley 20 v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). 21 Normally, the person having custody of the prisoner is the warden 22 of the prison because the warden has “day to day control over” 23 the prisoner. 24 (9th Cir.1992). 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. 25 Accordingly, Petitioner’s motion for leave to amend the 26 petition to name Kathleen Allison as Respondent in this matter is 27 GRANTED. 28 2 1 The Clerk of Court is DIRECTED to change the name of 2 Respondent to Kathleen Allison. 3 II. Screening the Petition 4 Rule 4 of the Rules Governing § 2254 Cases in the United 5 States District Courts (Habeas Rules) requires the Court to make 6 a preliminary review of each petition for writ of habeas corpus. 7 The Court must summarily dismiss a petition "[i]f it plainly 8 appears from the petition and any attached exhibits that the 9 petitioner is not entitled to relief in the district court....” 10 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 11 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 12 1990). 13 The Court may dismiss a petition for writ of habeas corpus 14 either on its own motion under Rule 4, pursuant to the 15 respondent's motion to dismiss, or after an answer to the 16 petition has been filed. 17 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 18 (9th Cir. 2001). 19 dismissed without leave to amend unless it appears that no 20 tenable claim for relief can be pleaded were such leave granted. 21 Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). Advisory Committee Notes to Habeas Rule A petition for habeas corpus should not be 22 III. 23 A petitioner who is in state custody and wishes to challenge 24 collaterally a conviction by a petition for writ of habeas corpus 25 must exhaust state judicial remedies. 26 The exhaustion doctrine is based on comity to the state court and 27 gives the state court the initial opportunity to correct the 28 state's alleged constitutional deprivations. Exhaustion of State Court Remedies 3 28 U.S.C. § 2254(b)(1). Coleman v. 1 Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 2 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 3 1988). 4 A petitioner can satisfy the exhaustion requirement by 5 providing the highest state court with the necessary jurisdiction 6 a full and fair opportunity to consider each claim before 7 presenting it to the federal court, and demonstrating that no 8 state remedy remains available. 9 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. Picard v. Connor, 404 U.S. 270, 10 1996). 11 was given a full and fair opportunity to hear a claim if the 12 petitioner has presented the highest state court with the claim's 13 factual and legal basis. 14 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 15 (1992), superceded by statute as stated in Williams v. Taylor, 16 529 U.S. 362 (2000) (factual basis). 17 A federal court will find that the highest state court Duncan v. Henry, 513 U.S. 364, 365 Additionally, the petitioner must have specifically told the 18 state court that he was raising a federal constitutional claim. 19 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 20 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala 21 v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 22 133 F.3d 1240, 1241 (9th Cir. 1998). 23 States Supreme Court reiterated the rule as follows: 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 4 1 2 3 4 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. 5 Duncan, 513 U.S. at 365-366. 6 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 7 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 8 Cir. 2001), stating: 9 10 11 12 13 14 15 16 17 18 19 20 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. 21 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 22 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 23 2001). 24 Where none of a petitioner’s claims has been presented to 25 the highest state court as required by the exhaustion doctrine, 26 the Court must dismiss the petition. Raspberry v. Garcia, 448 27 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 28 5 1 481 (9th Cir. 2001). 2 petition in abeyance pending exhaustion of the unexhausted claims 3 has not been extended to petitions that contain no exhausted 4 claims. 5 The authority of a court to hold a mixed Raspberry, 448 F.3d at 1154. In the petition, Petitioner challenges as a denial of his 6 due process rights the decision of the California Board of Parole 7 Hearings finding him unsuitable for parole on March 25, 2009. 8 Petitioner states that he filed a document in the state court in 9 which he was convicted (Pet. 2) and in the state intermediate 10 appellate court (Pet. 3). 11 order of the California Supreme Court denying his petition for 12 writ of habeas corpus on March 24, 2010. 13 also states that he does have a matter pending before the 14 intermediate appellate court. 15 robbery count and dismissal. 16 Petitioner has exhausted the claims concerning the parole 17 suitability determination that he challenges in the petition. 18 does not specifically describe the proceedings in the state 19 courts in which he exhausted his claims. 20 of the instant petition for writ of habeas corpus, it appears 21 that Petitioner has not presented his claims concerning the 22 parole decision to the California Supreme Court. 23 has not presented all of his claims to the California Supreme 24 Court, the Court cannot proceed to the merits of those claims. 28 25 U.S.C. § 2254(b)(1). 26 has presented his claims to the California Supreme Court and 27 simply neglected to inform this Court. He also attached to the petition an However, Petitioner It appears that this relates to a However, it is not clear that Therefore, upon review If Petitioner It is possible, however, that Petitioner 28 6 He 1 Thus, Petitioner must inform the Court if his claims have 2 been presented to the California Supreme Court, and if possible, 3 provide the Court with a copy of the petition filed in the 4 California Supreme Court, along with a copy of any ruling made by 5 the California Supreme Court. 6 been presented to the California Supreme Court, the Court is 7 unable to proceed to the merits of the petition. Without knowing what claims have 8 IV. Order to Show Cause 9 Accordingly, Petitioner is ORDERED to show cause why the 10 petition should not be dismissed for Petitioner’s failure to 11 exhaust state remedies. 12 Court what claims have been presented to the California Supreme 13 Court within thirty (30) days of the date of service of this 14 order. Petitioner is ORDERED to inform the 15 16 IT IS SO ORDERED. 17 Dated: ie14hj September 7, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 7