(HC) Tillman v. Board of Prison Terms, No. 1:2010cv02091 - Document 16 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS Recommending to Dismiss the 14 First Amended Petition for Writ of Habeas Corpus without Leave to Amend; Deny Petitioner's 15 Motion to Grant the Writ of Habeas Corpus as Moot; Decline to Issue a Certificate of Appealability signed by Magistrate Judge Sandra M. Snyder on 01/31/2011. Referred to Judge Wanger; Objections to F&R due by 3/7/2011. (Flores, E)
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(HC) Tillman v. Board of Prison Terms Doc. 16 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 BOARD OF PRISON TERMS, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—2091–OWW-SMS-HC FINDINGS AND RECOMMENDATION TO DISMISS THE FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS WITHOUT LEAVE TO AMEND (DOC. 14) FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER’S MOTION TO GRANT THE WRIT OF HABEAS CORPUS AS MOOT (DOC. 15) 16 FINDINGS AND RECOMMENDATION TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY 17 18 DEADLINE FOR OBJECTIONS: THIRTY (30) DAYS AFTER SERVICE OF THIS ORDER 19 20 21 Petitioner is a state prisoner proceeding pro se and in 22 forma pauperis with a petition for writ of habeas corpus pursuant 23 to 28 U.S.C. § 2254. 24 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 25 Rules 302 and 304. 26 petition filed on December 1, 2010, pursuant to the Court’s order 27 of November 22, 2010, dismissing and granting leave to amend the 28 initial petition. The matter has been referred to the Pending before the Court is the first amended In dismissing the initial petition, the Court 1 Dockets.Justia.com 1 determined that it failed to state a cognizable claim because it 2 lacked specificity and concerned conditions of confinement as 3 distinct from matters affecting the legality or duration of the 4 confinement. 5 exhaustion of state court remedies. Further, Petitioner had failed to demonstrate (Doc. 10.) 6 I. 7 Rule 4 of the Rules Governing § 2254 Cases in the United Screening the First Amended Petition 8 States District Courts (Habeas Rules) requires the Court to make 9 a preliminary review of each petition for writ of habeas corpus. 10 The Court must summarily dismiss a petition "[i]f it plainly 11 appears from the petition and any attached exhibits that the 12 petitioner is not entitled to relief in the district court....” 13 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 14 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 15 1990). 16 grounds of relief available to the Petitioner; 2) state the facts 17 supporting each ground; and 3) state the relief requested. 18 Notice pleading is not sufficient; rather, the petition must 19 state facts that point to a real possibility of constitutional 20 error. 21 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 22 Allison, 431 U.S. 63, 75 n. 7 (1977)). 23 that are vague, conclusory, or palpably incredible are subject to 24 summary dismissal. 25 Cir. 1990). 26 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 27 corpus either on its own motion under Habeas Rule 4, pursuant to 28 the respondent's motion to dismiss, or after an answer to the 2 1 petition has been filed. 2 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 3 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 4 Petitioner appears to state two separate claims. 5 Petitioner alleges that his continued confinement violates 6 the Eighth Amendment. 7 argument are that “time matrix” has been reached, and the 8 “continued use of an unrelated juvenile past insults the 9 reasonableness of rehabilitation.” 10 The facts alleged in support of his (Pet. 4.) Petitioner also claims that he was assigned a regular 11 attorney instead of an “A.D.A. attorney.” 12 alleges that unspecified records are clear that Petitioner had 13 learning and understanding difficulties, but the Board of Prison 14 Terms knowingly assigned the wrong attorney to represent 15 Petitioner’s case. 16 decision or proceeding involved or indicate the effect on him of 17 any error concerning assignment of counsel. 18 setting aside of the previous hearing, the nature of which is not 19 specified, and rescheduling of the hearing with an A.D.A. 20 attorney. 21 incarceration in which his Eighth Amendment rights were violated. 22 (Pet. 4.) 23 24 (Pet. 4.) Petitioner Petitioner does not identify the particular Petitioner seeks a Petitioner also prays for $1,000,000 per year of A. Lack of Specificity With respect to the claim concerning Petitioner’s continued 25 confinement, the allegations concerning the reaching of a time 26 matrix and use of an unspecified “juvenile past” are not 27 sufficiently specific to demonstrate the basis for a claim under 28 the Eighth Amendment or any other constitutional provision. 3 1 2 (Pet. 4.) With respect to Petitioner’s claim concerning assignment of 3 the wrong attorney, 4 any, prejudice he suffered by the presence of an attorney who was 5 not an “A.D.A” attorney. 6 drawn because Petitioner has not identified the context of the 7 representation; he has not specified a particular decision or a 8 particular decision maker. 9 Petitioner has failed to indicate what, if No inferences may intelligently be The notice pleading standard applicable in ordinary civil 10 proceedings does not apply in habeas corpus cases; rather, Rules 11 2(c), 4, and 5(b) of the Rules Governing Habeas Corpus Cases in 12 the United States District Courts require a more detailed 13 statement of all grounds for relief and the facts supporting each 14 ground; the petition is expected to state facts that point to a 15 real possibility of constitutional error and show the 16 relationship of the facts to the claim. 17 644, 655 (2005). 18 assist the district court in determining whether the respondent 19 should be ordered to show cause why the writ should not be 20 granted and to permit the filing of an answer that satisfies the 21 requirement that it address the allegations in the petition. 22 Conclusional allegations that are not unsupported by a statement 23 of specific facts do not warrant habeas relief. 24 66 F.3d 199, 204-05 (9th Cir. 1995). 25 Mayle v. Felix, 545 U.S. This is because the purpose of the rules is to Id. Jones v. Gomez, Here, Petitioner has failed to state specific facts that 26 point to a real possibility of constitutional error. 27 Petitioner’s allegations are so lacking in factual support that 28 the nature of any constitutional violation and the identity of 4 1 the proceedings being challenged are uncertain. 2 allegations are vague and conclusional, and thus they are subject 3 to summary dismissal. 4 For this reason, the petition must be dismissed. 5 6 Petitioner’s B. Exhaustion of State Remedies A petitioner who is in state custody and wishes to challenge 7 collaterally a conviction or decision by a petition for writ of 8 habeas corpus must exhaust state judicial remedies. 9 2254(b)(1). 28 U.S.C. § The exhaustion doctrine is based on comity to the 10 state court and gives the state court the initial opportunity to 11 correct the state's alleged constitutional deprivations. 12 v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 13 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th 14 Cir. 1988). 15 Coleman A petitioner can satisfy the exhaustion requirement by 16 providing the highest state court with the necessary jurisdiction 17 a full and fair opportunity to consider each claim before 18 presenting it to the federal court, and demonstrating that no 19 state remedy remains available. 20 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 21 1996). 22 was given a full and fair opportunity to hear a claim if the 23 petitioner has presented the highest state court with the claim's 24 factual and legal basis. 25 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 26 (1992), superceded by statute as stated in Williams v. Taylor, 27 529 U.S. 362 (2000) (factual basis). 28 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 5 1 state court that he was raising a federal constitutional claim. 2 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 3 (9th Cir.2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. 4 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 5 F.3d 1240, 1241 (9th Cir. 1998). 6 Supreme Court reiterated the rule as follows: 7 8 9 10 11 12 13 14 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. 15 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule 16 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 17 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 18 Cir. 2001), stating: 19 20 21 22 23 24 25 26 27 28 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. 6 1 2 3 ... 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. 4 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 5 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 6 2001). 7 If a petitioner’s grounds were not presented to the 8 California Supreme Court, they are unexhausted, and the petition 9 must be dismissed to provide the petitioner an opportunity to 10 exhaust the claims. 28 U.S.C. § 2254(b)(1); Rose, 455 U.S. at 11 521-22. 12 In the petition before the Court, Petitioner fails to 13 describe any presentation of his claim to the California Supreme 14 Court, although he states generally that did appeal the judgment 15 of conviction. (Pet. 1.) Petitioner refers to appeals to, and 16 review by, other courts, including this Court and the Sacramento 17 Superior Court, but no specifics are stated. Petitioner does not 18 identify any grounds as having been presented to the California 19 Supreme Court. 20 In short, Petitioner has not alleged specific facts 21 concerning exhaustion of state remedies despite having been given 22 an opportunity to so. 23 Accordingly, Petitioner has not alleged facts that would 24 warrant habeas relief from this Court. 25 C. Claim concerning Condition of Confinement 26 A federal court may only grant a petition for writ of habeas 27 corpus if the petitioner can show that "he is in custody in 28 7 1 violation of the Constitution or laws or treaties of the United 2 States." 3 correct method for a prisoner to challenge the legality or 4 duration of his confinement. 5 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 6 (1973)); Advisory Committee Notes to Habeas Rule 1, 1976 7 Adoption. 8 9 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. § 1983 is the proper method for a prisoner to challenge the 10 conditions of that confinement. 11 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 12 574; Advisory Committee Notes to Habeas Rule 1, 1976 Adoption. 13 McCarthy v. Bronson, 500 U.S. Petitioner does not state any facts indicating that any 14 specific constitutional violation has affected the legality or 15 duration of his confinement. 16 basis for a conclusion that his claim of failure to receive a 17 non-A.D.A. attorney is anything more than a complaint concerning 18 a condition of confinement, which would not entitle Petitioner to 19 habeas relief. 20 21 22 D. Petitioner does not allege any Dismissal The instant petition must be dismissed for the reasons stated above. 23 A petition for habeas corpus should not be dismissed without 24 leave to amend unless it appears that no tenable claim for relief 25 can be pleaded were such leave granted. 26 F.2d 13, 14 (9th Cir. 1971). 27 28 Jarvis v. Nelson, 440 Petitioner has already been given an opportunity to file a first amended petition to cure the very deficiencies that have 8 1 prompted this recommendation of dismissal. 2 were also present in Petitioner’s initial petition. 3 was expressly advised in the Court’s order dismissing the initial 4 petition with leave to amend that failure to file a petition in 5 compliance with the Court’s order (i.e., a completed petition 6 with cognizable federal claims clearly stated and exhaustion 7 specifically alleged) would result in a recommendation that the 8 petition be dismissed and the action be terminated. 9 despite having been warned, Petitioner has failed to remedy the 10 11 These deficiencies Petitioner However, defects in the petition. It appears that any further opportunity for amendment would 12 be futile. 13 claim for relief could be pleaded if leave to amend were granted. 14 Therefore, it will be recommended that the first amended 15 There is no basis for a conclusion that a tenable petition be dismissed without leave to amend. 16 II. 17 On December 6, 2010, Petitioner filed a motion to grant a Motion to Grant Writ of Habeas Corpus 18 writ of habeas corpus. 19 Petitioner in the motion were not declared to be true under 20 penalty of perjury. 21 shown that the “board” did not give him a fair hearing, discussed 22 various provisions of the California Penal Code concerning parole 23 eligibility and suitability, and reiterated that Petitioner 24 showed that the “board” did not give him a fair hearing. 25 at 1-2.) 26 parole that occurred on November 22, 2010, which by its terms was 27 not final until reviewed. 28 (Doc. 15.) The facts recited by In the motion, Petitioner stated that he had (Mot. He attached paperwork concerning a proposed denial of (Doc. 15, 3.) Petitioner does not demonstrate in the motion that he is 9 1 2 entitled to habeas corpus relief. Further, the pending petition does not contain claims 3 cognizable in federal habeas corpus, and Petitioner has not shown 4 that his state court remedies have been exhausted as to the 5 claims. 6 without leave to amend. 7 8 9 10 It has been recommended that the petition be dismissed It is therefore appropriate that the motion to grant a writ of habeas corpus be denied as moot. III. Certificate of Appealability Unless a circuit justice or judge issues a certificate of 11 appealability, an appeal may not be taken to the Court of Appeals 12 from the final order in a habeas proceeding in which the 13 detention complained of arises out of process issued by a state 14 court. 15 U.S. 322, 336 (2003). 16 only if the applicant makes a substantial showing of the denial 17 of a constitutional right. 18 petitioner must show that reasonable jurists could debate whether 19 the petition should have been resolved in a different manner or 20 that the issues presented were adequate to deserve encouragement 21 to proceed further. 22 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 23 certificate should issue if the Petitioner shows that jurists of 24 reason would find it debatable whether the petition states a 25 valid claim of the denial of a constitutional right and that 26 jurists of reason would find it debatable whether the district 27 court was correct in any procedural ruling. 28 529 U.S. 473, 483-84 (2000). 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 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 10 1 conducts an overview of the claims in the habeas petition, 2 generally assesses their merits, and determines whether the 3 resolution was debatable among jurists of reason or wrong. 4 It is necessary for an applicant to show more than an absence of 5 frivolity or the existence of mere good faith; however, it is not 6 necessary for an applicant to show that the appeal will succeed. 7 Miller-El v. Cockrell, 537 U.S. at 338. 8 A district court must issue or deny a certificate of 9 Id. appealability when it enters a final order adverse to the 10 applicant. 11 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 12 debate whether the petition should have been resolved in a 13 different manner. 14 of the denial of a constitutional right. 15 should decline to issue a certificate of appealability. Petitioner has not made a substantial showing Accordingly, the Court 16 IV. 17 Accordingly, it is RECOMMENDED that: 18 1) The petition for writ of habeas corpus be DISMISSED Recommendation 19 without leave to amend for failure to state a claim warranting 20 habeas corpus relief and failure to exhaust state court remedies; 21 and 22 23 24 25 26 27 28 2) Petitioner’s motion to grant the writ of habeas corpus be DENIED as moot; and 3) The Court DECLINE to issue a certificate of appealability; and 4) The Clerk be DIRECTED to close the action because the dismissal will terminate the case in its entirety. These findings and recommendations are submitted to the 11 1 United States District Court Judge assigned to the case, pursuant 2 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 3 the Local Rules of Practice for the United States District Court, 4 Eastern District of California. 5 being served with a copy, any party may file written objections 6 with the Court and serve a copy on all parties. 7 should be captioned “Objections to Magistrate Judge’s Findings 8 and Recommendations.” 9 and filed within fourteen (14) days (plus three (3) days if Within thirty (30) days after Such a document Replies to the objections shall be served 10 served by mail) after service of the objections. 11 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 12 636 (b)(1)(C). 13 objections within the specified time may waive the right to 14 appeal the District Court’s order. 15 1153 (9th Cir. 1991). The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 16 17 IT IS SO ORDERED. 18 Dated: icido3 January 31, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 12
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