(HC) Andrade v. Cal. Board of Prison Hearings, No. 1:2010cv01123 - Document 4 (E.D. Cal. 2011)
Court Description: ORDER Directing Petitioner To File A Supplement To The Petition Containing A Verification And Signature No Later Than Thirty (30) Days After The Date Of Service Of This Order (Doc. 1 ), ORDER Granting Petitioner Leave To File A Motion To Amend The P etition And Name A Proper Respondent No Later Than Thirty (30) Days After The Date Of Service Of This Order (Doc. 1 ), 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 ), signed by Magistrate Judge Sandra M. Snyder on 1/20/2011.(Case Management Deadline: 2/24/2011, Filing Deadline: 2/24/2011), (Show Cause Response due by 2/24/2011) (Fahrney, E)
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(HC) Andrade v. Cal. Board of Prison Hearings Doc. 4 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 LIBER R. ANDRADE, ) ) Petitioner, ) ) ) v. ) ) CAL. BOARD OF PRISON HEARINGS,) ) Respondent. ) ) ) 1:10-cv—1123–SMS-HC ORDER DIRECTING PETITIONER TO FILE A SUPPLEMENT TO THE PETITION CONTAINING A VERIFICATION AND SIGNATURE NO LATER THAN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER (Doc. 1) ORDER GRANTING PETITIONER LEAVE TO FILE A MOTION TO AMEND THE PETITION AND NAME A PROPER RESPONDENT NO LATER THAN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER (Doc. 1) 18 19 20 21 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) 22 Petitioner is a state prisoner proceeding pro se with a 23 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 24 Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to 25 the jurisdiction of the United States Magistrate Judge to conduct 26 all further proceedings in the case, including the entry of final 27 judgment, by manifesting consent in a signed writing filed by 28 1 Dockets.Justia.com 1 Petitioner on July 1, 2010 (doc. 3). 2 Pending before the Court is the petition, which was filed on June 3 22, 2010. 4 I. 5 Rule 4 of the Rules Governing § 2254 Cases in the United Screening the Petition 6 States District Courts (Habeas Rules) requires the Court to make 7 a preliminary review of each petition for writ of habeas corpus. 8 The Court must summarily dismiss a petition "[i]f it plainly 9 appears from the petition and any attached exhibits that the 10 petitioner is not entitled to relief in the district court....” 11 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 12 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 13 1990). 14 grounds of relief available to the Petitioner; 2) state the facts 15 supporting each ground; and 3) state the relief requested. 16 Notice pleading is not sufficient; rather, the petition must 17 state facts that point to a real possibility of constitutional 18 error. 19 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 20 Allison, 431 U.S. 63, 75 n. 7 (1977)). 21 that are vague, conclusory, or palpably incredible are subject to 22 summary dismissal. 23 Cir. 1990). 24 Habeas Rule 2(c) requires that a petition 1) specify all Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 25 corpus either on its own motion under Habeas Rule 4, pursuant to 26 the respondent's motion to dismiss, or after an answer to the 27 petition has been filed. 28 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 Advisory Committee Notes to Habeas Rule 2 1 (9th Cir. 2001). 2 II. 3 The portion of the petition containing arguments (pet. 7-16) Formal Defects in the Petition 4 is respectfully submitted and bears the signature of Petitioner. 5 (Pet. 16.) 6 form is not signed. 7 signed or declared to be true under penalty of perjury. 8 9 10 However, the verification portion of the petition (Pet. 6.) Thus, the petition itself is not Rule 2(c)(5) of the Rules Governing Section 2254 Cases (Habeas Rules) requires a petition for writ of habeas corpus to “be signed under penalty of perjury by the petitioner....” 11 III. 12 In light of the difficulty in having Petitioner submit an Order to Submit a Supplement to the Petition 13 entire new petition because the petition was not signed under 14 penalty of perjury, Petitioner is DIRECTED to submit to this 15 Court no later than thirty (30) days after the date of service of 16 this order a document entitled “Supplement to the Petition” that 17 is labeled with the case number of the present proceeding and 18 which is to consist of a declaration in which Petitioner declares 19 under penalty of perjury under the laws of the United States of 20 America that the matters alleged in the petition filed in this 21 proceeding on June 22, 2010, are true and correct. 22 declaration must indicate the date it was executed, and it must 23 be signed by Petitioner. The See 28 U.S.C. § 1746. 24 IV. Petitioner’s Failure to Name a Proper Respondent 25 In this case, Petitioner is an inmate of the California 26 Substance Abuse and Treatment Facility at Corcoran (CSATF). 27 Petitioner challenges the state parole authorities’ decision on 28 or about May 23, 2007, to deny parole to Petitioner. 3 Petitioner 1 named as Respondent the “Cal. Board of Prison Hearings.” 2 1.) 3 (Pet. A petitioner seeking habeas corpus relief under 28 U.S.C. 4 § 2254 must name the state officer having custody of him as the 5 respondent to the petition. 6 Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California 7 Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). 8 person having custody of an incarcerated petitioner is the warden 9 of the prison in which the petitioner is incarcerated because the Habeas Rule 2(a); Ortiz-Sandoval v. Normally, the 10 warden has "day-to-day control over" the petitioner and thus can 11 produce the petitioner. 12 378, 379 (9th Cir. 1992); see also, Stanley v. California Supreme 13 Court, 21 F.3d 359, 360 (9th Cir. 1994). 14 officer in charge of state penal institutions is also 15 appropriate. 16 Where a petitioner is on probation or parole, the proper 17 respondent is his probation or parole officer and the official in 18 charge of the parole or probation agency or state correctional 19 agency. Brittingham v. United States, 982 F.2d However, the chief Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Id. 20 The warden at CSATF is Kathleen Allison. 21 Here, Petitioner did not name the proper official. 22 Petitioner’s failure to name a proper respondent requires 23 dismissal of his habeas petition for lack of jurisdiction. 24 Stanley, 21 F.3d at 360. 25 However, the Court will give Petitioner the opportunity to 26 cure this defect by amending the petition to name a proper 27 respondent. 28 2004). See, In re Morris, 363 F.3d 891, 893-94 (9th Cir. In the interest of judicial economy, Petitioner need not 4 1 file an amended petition. 2 entitled "Motion to Amend the Petition to Name a Proper 3 Respondent" wherein Petitioner may name the proper respondent in 4 this action. 5 V. Instead, Petitioner may file a motion Order Granting Leave to Petitioner to File a Motion to Amend the Petition 6 Accordingly, Petitioner is GRANTED thirty (30) days from the 7 date of service of this order in which to file a motion to amend 8 the instant petition and name a proper respondent. Failure to 9 amend the petition and state a proper respondent will result in a 10 recommendation that the petition be dismissed for lack of 11 jurisdiction. 12 VI. Failure to Allege Exhaustion of State Court Remedies 13 Petitioner argues that his constitutional rights were 14 violated by a decision of the state parole authorities. 15 Petitioner raises the following four claims: 1) the decision was 16 not supported by some evidence that Petitioner remained a current 17 threat to society and thus violated Petitioner’s right to due 18 process of law, 2) the presence of law enforcement officers on 19 the board rendered it biased, and thus his right to a neutral 20 hearing body was infringed, 3) Petitioner was denied his right to 21 a jury trial in view of the length of his incarceration, and 4) 22 Petitioner has a protected liberty interest. (Pet. 4-8.) The 23 Court understands that the first and fourth claims relate to 24 Petitioner’s claim of a violation of due process of law and in 25 essence constitute a single claim. 26 A petitioner who is in state custody and wishes to challenge 27 collaterally a decision by a petition for writ of habeas corpus 28 5 1 must exhaust state judicial remedies. 2 The exhaustion doctrine is based on comity to the state court and 3 gives the state court the initial opportunity to correct the 4 state's alleged constitutional deprivations. 5 Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 6 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 7 1988). 8 9 28 U.S.C. § 2254(b)(1). Coleman v. A petitioner can satisfy the exhaustion requirement by providing the highest state court with the necessary jurisdiction 10 a full and fair opportunity to consider each claim before 11 presenting it to the federal court, and demonstrating that no 12 state remedy remains available. 13 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 14 1996). 15 was given a full and fair opportunity to hear a claim if the 16 petitioner has presented the highest state court with the claim's 17 factual and legal basis. 18 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 19 (1992), superceded by statute as stated in Williams v. Taylor, 20 529 U.S. 362 (2000) (factual basis). 21 Picard v. Connor, 404 U.S. 270, 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 22 state court that he was raising a federal constitutional claim. 23 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 24 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala 25 v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 26 133 F.3d 1240, 1241 (9th Cir. 1998). 27 States Supreme Court reiterated the rule as follows: 28 In Duncan, the United In Picard v. Connor, 404 U.S. 270, 275...(1971), 6 1 2 3 4 5 6 7 8 9 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. Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule 10 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 11 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 12 Cir. 2001), stating: 13 14 15 16 17 18 19 20 21 22 23 24 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. 25 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 26 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 27 2001). 28 7 1 Where none of a petitioner’s claims has been presented to 2 the highest state court as required by the exhaustion doctrine, 3 the Court must dismiss the petition. 4 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 5 481 (9th Cir. 2001). 6 petition in abeyance pending exhaustion of the unexhausted claims 7 has not been extended to petitions that contain no exhausted 8 claims. 9 Raspberry v. Garcia, 448 The authority of a court to hold a mixed Raspberry, 448 F.3d at 1154. Petitioner submitted with the petition a copy of a state 10 trial court decision on Petitioner’s petition for writ of habeas 11 corpus. 12 Petitioner’s claims were raised in that court. 13 submitted an order from the California Supreme Court denying a 14 petition for writ of habeas corpus on April 14, 2010. 15 143.) 16 the California Supreme Court, and he did not specifically 17 describe the proceedings in the state courts in which he 18 exhausted his claims. 19 his state court remedies with respect to each of his several 20 claims. (Pet. 133-42.) It does not appear that all of Petitioner (Pet. However, Petitioner did not submit his petition filed in Petitioner has not shown that he exhausted 21 Therefore, upon review of the instant petition for writ of 22 habeas corpus, it appears that Petitioner has not presented his 23 numerous claims to the California Supreme Court. 24 has not presented all of his claims to the California Supreme 25 Court, the Court cannot proceed to the merits of those claims. 28 26 U.S.C. § 2254(b)(1). 27 has presented his claims to the California Supreme Court and 28 simply neglected to inform this Court. If Petitioner It is possible, however, that Petitioner 8 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. 8 VII. 9 10 Without knowing what claims have Order to Petitioner to Show Cause Why the Petition Should Not Be Dismissed for Failure to Exhaust State Court Remedies Accordingly, Petitioner is ORDERED to show cause why the 11 petition should not be dismissed for Petitioner’s failure to 12 exhaust state remedies. 13 Court what claims have been presented to the California Supreme 14 Court within thirty (30) days of the date of service of this 15 order. 16 Petitioner is ORDERED to inform the Further, Petitioner is INFORMED that a failure to comply 17 timely with this order will be considered to be a failure to 18 comply with an order of the Court pursuant to Local Rule 110, and 19 it will result in dismissal of the action. 20 21 IT IS SO ORDERED. 22 Dated: icido3 January 20, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 9
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