-SKO (HC) Balkam v. Schwarzenegger et al, No. 1:2011cv00383 - Document 18 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS to Grant Respondent's 12 Motion to Dismiss the Petition for Failure to Exhaust State Court Remedies; FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition without Prejudice, Decline to Issue a Certificate of App ealability, and Direct the Clerk to Close the Case; Objections Deadline: Thirty Days After Service of this Order signed by Magistrate Judge Sheila K. Oberto on 1/3/2012. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 2/6/2012. (Sant Agata, S)
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-SKO (HC) Balkam v. Schwarzenegger et al Doc. 18 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 13 MATTHEW BALKAM, ) ) Petitioner, ) ) ) v. ) ) JAMES HARTLEY, Warden, et al, ) ) Respondents. ) ) ) 14 1:11-cv—00383-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS THE PETITION FOR FAILURE TO EXHAUST STATE COURT REMEDIES (DOCS. 12, 1) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT PREJUDICE (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE 15 OBJECTIONS DEADLINE: THIRTY (30) DAYS AFTER SERVICE OF THIS ORDER 16 17 Petitioner is a state prisoner proceeding pro se and in 18 forma pauperis with a petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2254. The matter has been referred to the 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 21 Rules 302 and 304. Pending before the Court is Respondent’s 22 motion to dismiss the petition for failure to exhaust state court 23 remedies, which was filed on June 6, 2011. Petitioner filed an 24 opposition on June 21, 2011. Pursuant to the Court’s order, 25 Respondent filed supplemental briefing and records on August 10, 26 2011. Petitioner filed a supplemental response on September 6, 27 2011. 28 1 Dockets.Justia.com 1 I. 2 Because the petition was filed after April 24, 1996, the Proceeding by a Motion to Dismiss 3 effective date of the Antiterrorism and Effective Death Penalty 4 Act of 1996 (AEDPA), the AEDPA applies to the petition. 5 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 6 1484, 1499 (9th Cir. 1997). Lindh v. 7 A district court may entertain a petition for a writ of 8 habeas corpus by a person in custody pursuant to the judgment of 9 a state court only on the ground that the custody is in violation 10 of the Constitution, laws, or treaties of the United States. 11 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 12 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 13 16 (2010) (per curiam). 14 28 Rule 4 of the Rules Governing Section 2254 Cases in the 15 United States District Courts (Habeas Rules) allows a district 16 court to dismiss a petition if it “plainly appears from the face 17 of the petition and any exhibits annexed to it that the 18 petitioner is not entitled to relief in the district court....” 19 The Ninth Circuit has allowed respondents to file motions to 20 dismiss pursuant to Rule 4 instead of answers if the motion to 21 dismiss attacks the pleadings by claiming that the petitioner has 22 failed to exhaust state remedies or has violated the state’s 23 procedural rules. 24 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 25 a petition for failure to exhaust state remedies). 26 See, e.g., O’Bremski v. Maass, 915 F.2d 418, Further, a respondent may file a motion to dismiss after the 27 Court orders the respondent to respond, and the Court should use 28 Rule 4 standards to review a motion to dismiss filed before a 2 1 2 formal answer. See, Hillery, 533 F. Supp. at 1194 & n.12. In this case, upon being directed to respond to the petition 3 by way of answer or motion, Respondent filed the motion to 4 dismiss. 5 found in the pleadings and in copies of the official records of 6 state parole and judicial proceedings which have been provided by 7 the parties, and as to which there is no factual dispute. 8 Court will therefore review Respondent’s motion to dismiss 9 pursuant to its authority under Rule 4. The material facts pertinent to the motion are to be The 10 II. 11 Petitioner, an inmate of the Avenal State Prison (ASP), Background 12 challenges the decision of California’s governor made in March 13 2010 to rescind a decision of California’s Board of Parole 14 Hearings (BPH) finding Petitioner suitable for parole after a 15 hearing held before the BPH on October 14, 2009. 16 Petitioner filed post-judgment proceedings for collateral relief 17 in the Superior Court of the State of California, County of 18 Riverside; the California Court of Appeal for the Fourth 19 Appellate District; and the California Supreme Court. 20 (Pet 1-22, 38.) (Id. 2-3.) After the Court’s screening process, the sole claim 21 remaining in the petition before the Court is that application to 22 Petitioner of the procedure for gubernatorial review denied 23 Petitioner’s right to due process of law because it changed the 24 terms of the plea agreement reached in connection with his guilty 25 plea to the commitment offense, second degree murder. 26 contends that Petitioner did not present the factual or legal 27 basis of this claim to the California Supreme Court, and thus 28 Petitioner failed to exhaust state court remedies as to the one 3 Respondent 1 claim remaining in the petition. 2 The record reflects that Petitioner did not mention the 3 issue in the body of the petition that he filed in the California 4 Supreme Court. 5 that Petitioner raised the issue in a reply to the informal 6 response of the government in the Superior Court habeas 7 proceeding. 8 GENERALS INFORMAL RESPONSE, in re Matthew Balkam, Case No. 9 RIC10009489,” was attached as an exhibit to the petition filed by (Pet., doc. 1, 30-52.) However, it is undisputed This reply, entitled “RESPONSE TO THE ATTORNEY 10 Petitioner in the California Supreme Court. 11 Review of the copy of the entire petition, including exhibits, 12 that was filed in the California Supreme Court reflects that the 13 issue was not mentioned in any other portion of the petition. 14 (Id. at 28-362.)1 15 16 III. (Id. at 345-48.) Exhaustion of State Court Remedies A. Legal Standards 17 A petitioner who is in state custody and wishes to challenge 18 collaterally a conviction by a petition for writ of habeas corpus 19 must exhaust state judicial remedies. 20 The exhaustion doctrine is based on comity to the state court and 21 gives the state court the initial opportunity to correct the 22 state's alleged constitutional deprivations. 23 Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 24 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 28 U.S.C. § 2254(b)(1). Coleman v. 25 26 27 28 1 Respondent refers to court document 8, which is a copy of the petition filed in the instant action that was served on the Attorney General in connection with the Court’s order requiring a response to the petition. However, the Court will refer to the original petition filed in this action, which appears as document 1 in the docket. 4 1 2 1988). A petitioner can satisfy the exhaustion requirement by 3 providing the highest state court with the necessary jurisdiction 4 a full and fair opportunity to consider each claim before 5 presenting it to the federal court, and demonstrating that no 6 state remedy remains available. 7 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 8 1996). 9 was given a full and fair opportunity to hear a claim if the Picard v. Connor, 404 U.S. 270, A federal court will find that the highest state court 10 petitioner has presented the highest state court with the claim's 11 factual and legal basis. 12 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 13 (1992), superceded by statute as stated in Williams v. Taylor, 14 529 U.S. 362 (2000) (factual basis). 15 Duncan v. Henry, 513 U.S. 364, 365 Additionally, the petitioner must have specifically told the 16 state court that he was raising a federal constitutional claim. 17 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 18 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala 19 v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 20 133 F.3d 1240, 1241 (9th Cir. 1998). 21 States Supreme Court reiterated the rule as follows: 22 23 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 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 5 1 2 process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 3 Duncan, 513 U.S. at 365-366. 4 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 5 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 6 Cir. 2001), stating: 7 8 9 10 11 12 13 14 15 16 17 18 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. 19 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 20 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 21 2001). 22 Where none of a petitioner’s claims has been presented to 23 the highest state court as required by the exhaustion doctrine, 24 the Court must dismiss the petition. Raspberry v. Garcia, 448 25 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 26 481 (9th Cir. 2001). Further, where some claims are exhausted 27 and others are not (i.e., a “mixed” petition), the Court must 28 6 1 dismiss the petition without prejudice to give Petitioner an 2 opportunity to exhaust the claims if he can do so. 3 U.S. at 510, 521-22; Calderon v. United States Dist. Court 4 (Gordon), 107 F.3d 756, 760 (9th Cir. 1997), en banc, cert. 5 denied, 118 S.Ct. 265 (1997); Greenawalt v. Stewart, 105 F.3d 6 1268, 1273 (9th Cir. 1997), cert. denied, 117 S.Ct. 1794 (1997). 7 However, the Court must give a petitioner an opportunity to amend 8 a mixed petition to delete the unexhausted claims and permit 9 review of properly exhausted claims. Rose, 455 Rose v. Lundy, 455 U.S. at 10 520; Calderon v. United States Dist. Ct. (Taylor), 134 F.3d 981, 11 986 (9th Cir. 1998), cert. denied, 525 U.S. 920 (1998); James v. 12 Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). 13 Generally a state prisoner does not fairly present a claim 14 to a state court if, in order to find the material in question, 15 that court must read beyond a petition, brief, or similar 16 document that does not itself alert it to the presence of a 17 federal claim. 18 Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005) (a 19 statement of the issue in motions and briefing in the trial court 20 was held not sufficient to alert an appellate court to the 21 issue); Robinson v. Kramer, 588 F.3d 1212, 1217 (9th Cir. 2009) 22 (a trial transcript reflecting the raising of an issue was not 23 lone sufficient to present the claim to the appellate court). 24 25 B. Baldwin v. Reese, 541 U.S. 27, 32 (2004); accord, Analysis Here, Petitioner failed to raise the issue concerning his 26 plea in the body of his petition to the California Supreme Court. 27 The only mention of an issue concerning the effect of 28 gubernatorial review on Petitioner’s guilty plea to his 7 1 commitment offense was in a pleading filed in the trial court and 2 included as an exhibit to the petition filed in the California 3 Supreme Court. 4 presentation of Petitioner’s claim to the California Supreme 5 Court. 6 This is insufficient to constitute fair Although non-exhaustion of remedies has been viewed as an 7 affirmative defense, it is the petitioner’s burden to prove that 8 state judicial remedies were properly exhausted. 9 § 2254(b)(1)(A); Darr v. Burford, 339 U.S. 200, 218-19 (1950), 28 U.S.C. 10 overruled in part on other grounds in Fay v. Noia, 372 U.S. 391 11 (1963); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). 12 If available state court remedies have not been exhausted as to 13 all claims, a district court must dismiss a petition. 14 Lundy, 455 U.S. 509, 515-16 (1982). 15 Rose v. Accordingly, the Court concludes that as to the one claim 16 remaining in the petition, Petitioner failed to exhaust his state 17 court remedies. 18 should be granted. Respondent’s motion to dismiss the petition 19 IV. 20 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 21 appealability, an appeal may not be taken to the Court of Appeals 22 from the final order in a habeas proceeding in which the 23 detention complained of arises out of process issued by a state 24 court. 25 U.S. 322, 336 (2003). 26 only if the applicant makes a substantial showing of the denial 27 of a constitutional right. 28 petitioner must show that reasonable jurists could debate whether 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). 8 Under this standard, a 1 the petition should have been resolved in a different manner or 2 that the issues presented were adequate to deserve encouragement 3 to proceed further. 4 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 5 certificate should issue if the Petitioner shows that jurists of 6 reason would find it debatable whether the petition states a 7 valid claim of the denial of a constitutional right and that 8 jurists of reason would find it debatable whether the district 9 court was correct in any procedural ruling. 10 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). 11 In determining this issue, a court conducts an overview of 12 the claims in the habeas petition, generally assesses their 13 merits, and determines whether the resolution was debatable among 14 jurists of reason or wrong. 15 applicant to show more than an absence of frivolity or the 16 existence of mere good faith; however, it is not necessary for an 17 applicant to show that the appeal will succeed. 18 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 19 A district court must issue or deny a certificate of 20 appealability when it enters a final order adverse to the 21 applicant. 22 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 23 debate whether the petition should have been resolved in a 24 different manner. 25 of the denial of a constitutional right. 26 recommended that the Court decline to issue a certificate of 27 appeal ability. 28 /// Petitioner has not made a substantial showing 9 Accordingly, it will be 1 V. 2 Accordingly, it is RECOMMENDED that: 3 1) 4 2) The petition be DISMISSED without prejudice for failure to exhaust state court remedies; and 7 8 Respondent’s motion to dismiss the petition for failure to exhaust state court remedies be GRANTED; and 5 6 Recommendations 3) The Court DECLINE to issue a certificate of appealability; and 9 4) The Clerk be DIRECTED to close the case. 10 These findings and recommendations are submitted to the 11 United States District Court Judge assigned to the case, pursuant 12 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 13 the Local Rules of Practice for the United States District Court, 14 Eastern District of California. 15 being served with a copy, any party may file written objections 16 with the Court and serve a copy on all parties. 17 should be captioned “Objections to Magistrate Judge’s Findings 18 and Recommendations.” 19 and filed within fourteen (14) days (plus three (3) days if 20 served by mail) after service of the objections. 21 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 22 § 636 (b)(1)(C). 23 objections within the specified time may waive the right to 24 appeal the District Court’s order. 25 1153 (9th Cir. 1991). 26 IT IS SO ORDERED. 27 Dated: ie14hj Within thirty (30) days after Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file January 3, 2012 Martinez v. Ylst, 951 F.2d /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 28 10
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