(HC) Tillman v. Powers, No. 1:2010cv01893 - Document 13 (E.D. Cal. 2011)
Court Description: FINDINGS And RECOMMENDATION To Dismiss Without Leave To Amend The First Amended Petition For Writ Of Habeas Corpus (Doc. 11 ) And To Decline To Issue A Certificate Of Appealability, Findings And Recommendations To Deny Petitioner's Motion To G rant The Writ (Doc. 12 ) As Moot, Deadline For Objections: Thirty (30) Days After Service Of This Order, signed by Magistrate Judge Sandra M. Snyder on 1/21/2011. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 2/25/2011. (Fahrney, E)
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(HC) Tillman v. Powers Doc. 13 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 ANTHONY B. TILLMAN, 11 ) ) ) ) ) ) ) Petitioner, 12 v. 13 MENDOZ K. POWERS, ) 14 Respondent. 15 1:10-cv—1893–LJO-SMS-HC FINDINGS AND RECOMMENDATION TO DISMISS WITHOUT LEAVE TO AMEND THE FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (DOC. 11) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY ) ) FINDINGS AND RECOMMENDATIONS TO ) DENY PETITIONER’S MOTION TO GRANT ) THE WRIT (DOC. 12) AS MOOT 16 DEADLINE FOR OBJECTIONS: THIRTY (30) DAYS AFTER SERVICE OF THIS ORDER 17 18 19 Petitioner is a state prisoner proceeding in forma pauperis 20 and pro se with a petition for writ of habeas corpus pursuant to 21 28 U.S.C. § 2254. 22 Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 23 304. 24 filed on November 29, 2010, pursuant to the Court’s order 25 granting leave to amend the initial petition, which lacked 26 specificity, failed to demonstrate exhaustion of state court 27 remedies, and concerned conditions of confinement as distinct 28 from matters affecting the legality or duration of Petitioner’s The matter has been referred to the Magistrate Pending before the Court is the first amended petition 1 Dockets.Justia.com 1 detention. 2 I. 3 Rule 4 of the Rules Governing § 2254 Cases in the United Screening the Petition 4 States District Courts (Habeas Rules) requires the Court to make 5 a preliminary review of each petition for writ of habeas corpus. 6 The Court must summarily dismiss a petition "[i]f it plainly 7 appears from the petition and any attached exhibits that the 8 petitioner is not entitled to relief in the district court....” 9 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 10 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 11 1990). 12 grounds of relief available to the Petitioner; 2) state the facts 13 supporting each ground; and 3) state the relief requested. 14 Notice pleading is not sufficient; rather, the petition must 15 state facts that point to a real possibility of constitutional 16 error. 17 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 18 Allison, 431 U.S. 63, 75 n. 7 (1977)). 19 that are vague, conclusory, or palpably incredible are subject to 20 summary dismissal. 21 Cir. 1990). 22 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 23 corpus either on its own motion under Habeas Rule 4, pursuant to 24 the respondent's motion to dismiss, or after an answer to the 25 petition has been filed. 26 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 27 (9th Cir. 2001). 28 /// Advisory Committee Notes to Habeas Rule 2 1 2 A. Lack of Specificity In the petition before the Court, Petitioner does not 3 identify a particular decision or a particular decision maker. 4 Petitioner identifies the grounds for his petition as “Denial of 5 effective assistance of counsel.” 6 supporting facts is equally brief: 7 8 9 10 (pet. 4.) His statement of Did not call (produce) witnesses on my behalf. Did not offer or produce the video tape that would have cleared me of all charges. (Pet. 4.) Petitioner has failed to state specific facts that point to 11 a real possibility of constitutional error. 12 allegations are so lacking in factual support that the identity 13 of the proceedings being challenged is uncertain. 14 allegations are vague and conclusional, and thus they are subject 15 to summary dismissal. 16 dismissed. 17 18 B. Petitioner’s Petitioner’s For this reason, the petition must be Exhaustion of State Remedies A petitioner who is in state custody and wishes to challenge 19 collaterally a conviction or decision by a petition for writ of 20 habeas corpus must exhaust state judicial remedies. 21 2254(b)(1). 22 state court and gives the state court the initial opportunity to 23 correct the state's alleged constitutional deprivations. 24 v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 25 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th 26 Cir. 1988). 27 28 28 U.S.C. § The exhaustion doctrine is based on comity to the Coleman A petitioner can satisfy the exhaustion requirement by providing the highest state court with the necessary jurisdiction 3 1 a full and fair opportunity to consider each claim before 2 presenting it to the federal court, and demonstrating that no 3 state remedy remains available. 4 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 5 1996). 6 was given a full and fair opportunity to hear a claim if the 7 petitioner has presented the highest state court with the claim's 8 factual and legal basis. 9 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 10 (1992), superceded by statute as stated in Williams v. Taylor, 11 529 U.S. 362 (2000) (factual basis). 12 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 13 state court that he was raising a federal constitutional claim. 14 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 15 (9th Cir.2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. 16 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 17 F.3d 1240, 1241 (9th Cir. 1998). 18 Supreme Court reiterated the rule as follows: 19 20 21 22 23 24 25 26 In Duncan, the United States 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. 27 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule 28 4 1 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 3 Cir. 2001), stating: 4 5 6 7 8 9 10 11 12 13 14 15 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. 16 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 17 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 18 2001). 19 If a petitioner’s grounds were not presented to the 20 California Supreme Court, they are unexhausted, and the petition 21 must be dismissed to provide the petitioner an opportunity to 22 exhaust the claims. 28 U.S.C. § 2254(b)(1); Rose, 455 U.S. at 23 521-22. 24 In the petition before the Court, Petitioner fails to 25 describe any presentation of his claim to the California Supreme 26 Court, although he states generally that did appeal to the 27 highest state court. (Pet. 3.) However, Petitioner does not 28 5 1 state what grounds were presented to the California Supreme 2 Court. 3 whether Petitioner had filed any applications with respect to the 4 judgment in question other than a direct appeal from his 5 conviction and sentence, Petitioner described multiple 6 applications to the “District Court” against the Board of Prison 7 Terms concerning not having been provided an ADA attorney by the 8 Board of Prison terms. 9 refer to previous cases in federal court. In response to a query on the petition form regarding (Pet. 2-3.) These references appear to Petitioner has not 10 alleged specific facts concerning exhaustion of state remedies 11 despite having been given an opportunity to so. 12 13 C. Absence of a Cognizable Claim A federal court may only grant a petition for writ of habeas 14 corpus if the petitioner can show that "he is in custody in 15 violation of the Constitution or laws or treaties of the United 16 States." 17 correct method for a prisoner to challenge the legality or 18 duration of his confinement. 19 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 20 (1973)); Advisory Committee Notes to Habeas Rule 1, 1976 21 Adoption. 22 28 U.S.C. § 2254(a). A habeas corpus petition is the Badea v. Cox, 931 F.2d 573, 574 In contrast, a civil rights action pursuant to 42 U.S.C. § 23 1983 is the proper method for a prisoner to challenge the 24 conditions of that confinement. 25 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 26 574; Advisory Committee Notes to Habeas Rule 1, 1976 Adoption. 27 28 McCarthy v. Bronson, 500 U.S. Petitioner does not state any facts indicating that the alleged ineffective assistance of counsel has affected the 6 1 legality or duration of his confinement. 2 allege facts that would warrant relief by way of habeas corpus. 3 4 5 6 D. Thus, he has failed to Dismissal The instant petition must be dismissed for the reasons stated above. Petitioner has already been given an opportunity to file a 7 first amended petition to cure these very deficiencies, which 8 were also present in Petitioner’s initial petition. 9 was expressly advised in the Court’s order dismissing the Petitioner 10 petition with leave to amend that failure to file a petition in 11 compliance with the Court’s order (i.e., a completed petition 12 with cognizable federal claims clearly stated and exhaustion 13 specifically alleged) would result in a recommendation that the 14 petition be dismissed and the action be terminated. 15 Petitioner has failed to remedy the defects in the petition. 16 appears that any further opportunity for amendment would be 17 futile. However, It 18 II. 19 On December 20, 2010, Petitioner filed a document entitled Petitioner’s Motion TO Grant Writ of Habeas Corpus 20 “MOTION TO GRANT WRIT OF HABEAS CORPUS,” in which he set forth 21 information regarding state laws and procedures concerning fixing 22 prison terms, and he stated that his “client would like his 23 primary term fixed at his hearing....” 24 concluded that the hearing procedures that he described show that 25 Respondent did not give a fair hearing. 26 (Mot. 2.) Petitioner (Moat. 3.) Petitioner does not demonstrate in the motion any basis for 27 granting a writ of habeas corpus. 28 undersigned’s recommendation to dismiss the first amended 7 Further, in light of the 1 petition without leave to amend, Petitioner’s motion should be 2 denied as moot. 3 III. 4 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 5 appealability, an appeal may not be taken to the Court of Appeals 6 from the final order in a habeas proceeding in which the 7 detention complained of arises out of process issued by a state 8 court. 9 U.S. 322, 336 (2003). 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue 10 only if the applicant makes a substantial showing of the denial 11 of a constitutional right. 12 petitioner must show that reasonable jurists could debate whether 13 the petition should have been resolved in a different manner or 14 that the issues presented were adequate to deserve encouragement 15 to proceed further. 16 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 17 certificate should issue if the Petitioner shows that jurists of 18 reason would find it debatable whether the petition states a 19 valid claim of the denial of a constitutional right and that 20 jurists of reason would find it debatable whether the district 21 court was correct in any procedural ruling. 22 529 U.S. 473, 483-84 (2000). 23 conducts an overview of the claims in the habeas petition, 24 generally assesses their merits, and determines whether the 25 resolution was debatable among jurists of reason or wrong. 26 It is necessary for an applicant to show more than an absence of 27 frivolity or the existence of mere good faith; however, it is not 28 necessary for an applicant to show that the appeal will succeed. § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court 8 Id. 1 Miller-El v. Cockrell, 537 U.S. at 338. 2 A district court must issue or deny a certificate of 3 appealability when it enters a final order adverse to the 4 applicant. 5 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 6 debate whether the petition should have been resolved in a 7 different manner. 8 of the denial of a constitutional right. 9 should decline to issue a certificate of appealability. Petitioner has not made a substantial showing Accordingly, the Court 10 IV. 11 Accordingly, it is RECOMMENDED that: 12 1) The petition for writ of habeas corpus be DISMISSED Recommendation 13 without leave to amend for failure to state a claim warranting 14 habeas corpus relief and failure to exhaust state court remedies; 15 and 16 17 18 19 20 21 2) Petitioner’s motion to grant the writ be DENIED as moot; 3) The Court DECLINE to issue a certificate of and appealability; and 4) The Clerk be DIRECTED to close the action because the dismissal will terminate the case in its entirety. 22 These findings and recommendations are submitted to the 23 United States District Court Judge assigned to the case, pursuant 24 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 25 the Local Rules of Practice for the United States District Court, 26 Eastern District of California. 27 being served with a copy, any party may file written objections 28 with the Court and serve a copy on all parties. Within thirty (30) days after 9 Such a document 1 should be captioned “Objections to Magistrate Judge’s Findings 2 and Recommendations.” 3 and filed within fourteen (14) days (plus three (3) days if 4 served by mail) after service of the objections. 5 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 6 636 (b)(1)(C). 7 objections within the specified time may waive the right to 8 appeal the District Court’s order. 9 1153 (9th Cir. 1991). Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 10 11 IT IS SO ORDERED. 12 Dated: icido3 January 21, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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