(HC) Frank v. Yates, No. 1:2010cv01212 - Document 5 (E.D. Cal. 2010)
Court Description: ORDER DISMISSING Petition For Writ Of Habeas Corpus 1 , ORDER Denying Motion For Stay 2 , ORDER Directing Clerk Of Court To Enter Judgment And Close Case, ORDER Declining Issuance Of Certificate Of Appealability, signed by Magistrate Judge Gary S. Austin on 8/3/2010. CASE CLOSED. (Scrivner, E)
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(HC) Frank v. Yates Doc. 5 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 KENNETH A. FRANK, ) ) ) ) ) ) ) ) ) ) ) 13 Petitioner, 14 15 v. 16 JAMES A. YATES, Warden, 17 Respondent. 18 ) 1:10-CV-01212 GSA HC ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS ORDER DENYING MOTION FOR STAY ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY 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. Petitioner has consented to the exercise of magistrate judge 21 jurisdiction pursuant to 28 U.S.C. § 636(c). 22 On July 6, 2010, Petitioner filed the instant petition for writ of habeas corpus in this Court. 23 He challenges a 1989 conviction in the Kern County Superior Court. 24 DISCUSSION 25 A. Procedural Grounds for Summary Dismissal 26 Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part: 27 If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk 28 U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 to notify the petitioner. 2 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 3 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 4 dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th 5 Cir.2001). A petition for habeas corpus should not be dismissed without leave to amend unless it 6 appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 7 440 F.2d 13, 14 (9th Cir. 1971). 8 B. Failure to State a Cognizable Federal Claim 9 The basic scope of habeas corpus is prescribed by statute. Subsection (c) of Section 2241 of 10 Title 28 of the United States Code provides that habeas corpus shall not extend to a prisoner unless 11 he is “in custody in violation of the Constitution.” 28 U.S.C. § 2254(a) states: 12 The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to a judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 13 14 (emphasis added). See also, Rule 1 to the Rules Governing Section 2254 Cases in the United States 15 District Court. The Supreme Court has held that “the essence of habeas corpus is an attack by a 16 person in custody upon the legality of that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484 17 (1973). 18 Furthermore, in order to succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must 19 demonstrate that the adjudication of his claim in state court 20 resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 21 22 23 28 U.S.C. § 2254(d)(1),(2). 24 In the instant case, Petitioner fails to state a cognizable federal claim with respect to his 25 fourth ground for relief. In said ground, Petitioner alleges the Kern County Superior Court 26 committed prejudicial error when it destroyed the court reporter’s notes of Petitioner’s jury trial 27 without complying with relevant California statutes. As this claim is grounded in state law, it does 28 U .S. D istrict C ourt E. D . C alifornia cd 2 1 not present a cognizable federal claim. Estelle v. McGuire, 502 U.S. 62, 67, (1991) ("We have 2 stated many times that 'federal habeas corpus relief does not lie for errors of state law.' "), quoting 3 Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Gilmore v. Taylor, 508 U.S. 333, 348-49 (1993) 4 (O’Connor, J., concurring) (“mere error of state law, one that does not rise to the level of a 5 constitutional violation, may not be corrected on federal habeas”). While Petitioner claims a 6 violation of federal due process principles, merely placing a “due process” label on an alleged 7 violation does not entitle Petitioner to federal relief. Langford v. Day, 110 F.3d 1386, 1388-89 8 (1996). Broad, conclusory allegations of unconstitutionality are insufficient to state a cognizable 9 claim. Jones v. Gomez, 66 F.3d 199, 205 (9th Cir.1995); Greyson v. Kellam, 937 F.2d 1409, 1412 10 (9th Cir.1991) (bald assertions of ineffective assistance of counsel did not entitle the petitioner to an 11 evidentiary hearing); see also Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999), citing Gray v. 12 Netherland, 518 U.S. 152, 162-63 (1996) (“general appeals to broad constitutional principles, such 13 as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion). 14 There is no federal right to a copy of the court reporter’s notes of which this Court is aware. Further, 15 the alleged destruction of these notes did not bar him from filing an appeal. Therefore, the claim 16 must be dismissed. 17 C. Exhaustion of State Remedies 18 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 19 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 20 exhaustion doctrine is based on comity to the state court and gives the state court the initial 21 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 22 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 23 1163 (9th Cir. 1988). 24 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 25 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 26 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 27 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full 28 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the U .S. D istrict C ourt E. D . C alifornia cd 3 1 claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 2 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 3 Additionally, the petitioner must have specifically told the state court that he was raising a 4 federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 5 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999); 6 Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In Duncan, the United States Supreme Court 7 reiterated the rule as follows: 8 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. 9 10 11 12 13 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 14 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. 15 16 17 18 19 20 21 22 23 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added). 24 Petitioner concedes that the four remaining grounds for relief are unexhausted. He states he 25 is currently seeking relief for those claims in the state courts. As the instant petition is completely 26 unexhausted, it must be dismissed. 28 U.S.C. § 2254(b)(1). 27 D. Motion for Stay 28 Petitioner has filed a motion to stay the petition pending exhaustion of state remedies. A U .S. D istrict C ourt E. D . C alifornia cd 4 1 district court has discretion to stay a petition which it may validly consider on the merits. Rhines v. 2 Weber, 544 U.S. 269, 277 (2005); Calderon v. United States Dist. Court (Taylor), 134 F.3d 981, 3 987-88 (9th Cir. 1998); Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir.), cert. denied, 519 U.S. 4 1102 (1997). However, the Supreme Court recently held that this discretion is circumscribed by the 5 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Rhines, 544 U.S. at 277. In light 6 of AEDPA’s objectives, “stay and abeyance [is] available only in limited circumstances” and “is 7 only appropriate when the district court determines there was good cause for the petitioner’s failure 8 to exhaust his claims first in state court.” Id. at 277. In this case, the four remaining claims for relief 9 are unexhausted, thereby rendering the petition unexhausted. The Court must dismiss such a 10 petition. Therefore, Petitioner’s motion for stay is DENIED. Petitioner may return to this Court 11 upon exhaustion of his claims, provided he does so within the statute of limitations. In this case, he 12 states he filed his first state habeas petition within the limitations period. Therefore, there is no good 13 cause to stay proceedings even if a stay were permitted. 14 E. Certificate of Appealability 15 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 16 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller- 17 El v. Cockrell, 123 S.Ct. 1029, 1039 (2003). The controlling statute in determining whether to issue 18 a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 19 (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. 20 21 (b) There shall be no right of appeal from a final order in a proceeding to test the 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. 22 23 (c) 24 25 (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from– (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 26 27 (B) the final order in a proceeding under section 2255. 28 (2) A certificate of appealability may issue under paragraph (1) only if the U .S. D istrict C ourt E. D . C alifornia cd 5 1 applicant has made a substantial showing of the denial of a constitutional right. 2 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 3 If a court denies a petitioner’s petition, the court may only issue a certificate of appealability 4 “if jurists of reason could disagree with the district court’s resolution of his constitutional claims or 5 that jurists could conclude the issues presented are adequate to deserve encouragement to proceed 6 further.” Miller-El, 123 S.Ct. at 1034; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the 7 petitioner is not required to prove the merits of his case, he must demonstrate “something more than 8 the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 123 S.Ct. at 9 1040. 10 In the present case, the Court finds that reasonable jurists would not find the Court’s 11 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or 12 deserving of encouragement to proceed further. Petitioner has not made the required substantial 13 showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a 14 certificate of appealability. 15 ORDER 16 Accordingly, IT IS HEREBY ORDERED: 17 1) Ground Four of the petition for writ of habeas corpus is DISMISSED WITH PREJUDICE; 18 2) The petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE for failure 19 to exhaust state remedies; 20 3) Petitioner’s motion for stay is DENIED; 21 4) The Clerk of Court is DIRECTED to enter judgment and close the case; and 22 5) The Court DECLINES to issue a certificate of appealability. 23 24 IT IS SO ORDERED. 25 Dated: 26 6i0kij August 3, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 27 28 U .S. D istrict C ourt E. D . C alifornia cd 6
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