-SKO (HC) Walker v. Uribe, No. 1:2011cv00585 - Document 15 (E.D. Cal. 2011)

Court Description: ORDER Discharging Order To Show Cause (Doc. 7 ), ORDER Denying Petitioner's Motion For Stay And Abeyance Of The Petition (Doc. 13 ), FINDINGS And RECOMMENDATION To Dismiss The Petition Without Prejudice For Failure To Exhaust State Court Remed ies (Doc. 1 ), Decline To Issue A Certificate Of Appealability, And Direct The Clerk To Close The Action, Objections Deadline: Thirty (30) Days, signed by Magistrate Judge Sheila K. Oberto on 12/12/2011. F&R's referred to Judge Anthony W. Ishii. (Objections to F&R due by 1/17/2012) (Fahrney, E)
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-SKO (HC) Walker v. Uribe Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL E. WALKER, II, 12 Petitioner, 13 14 15 16 17 18 19 20 v. DOMINGO URIBE, JR., Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—00585-AWI-SKO-HC ORDER DISCHARGING ORDER TO SHOW CAUSE (Doc. 7) ORDER DENYING PETITIONER’S MOTION FOR STAY AND ABEYANCE OF THE PETITION (Doc. 13) FINDINGS AND RECOMMENDATION TO DISMISS THE PETITION WITHOUT PREJUDICE FOR FAILURE TO EXHAUST STATE COURT REMEDIES (Doc. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE ACTION OBJECTIONS DEADLINE: THIRTY (30) DAYS 21 22 Petitioner is a state prisoner proceeding pro se and in 23 forma pauperis with a petition pursuant to 28 U.S.C. § 2254. 24 matter has been referred to the Magistrate Judge pursuant to 28 25 U.S.C.§ 636(b)(1) and Local Rules 302 and 303. 26 the Court is Petitioner’s response to an order to show cause and 27 Petitioner’s motion for a stay and abeyance of the proceedings to 28 permit Petitioner to complete exhaustion of state court remedies The Pending before 1 Dockets.Justia.com 1 with respect to the claims raised in the petition. 2 I. 3 Because Petitioner has filed a timely response to the order Discharge of the Order to Show Cause 4 to show cause, the order to show cause that issued on May 4, 5 2011, is DISCHARGED. 6 II. 7 Rule 4 of the Rules Governing § 2254 Cases in the United Screening the 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). 4 dismissed without leave to amend unless it appears that no 5 tenable claim for relief can be pleaded were such leave granted. 6 Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). Advisory Committee Notes to Habeas Rule A petition for habeas corpus should not be 7 III. 8 Here, after review of the petition, the Court on May 4, 9 Background 2011, issued an order to Petitioner to show cause why the 10 petition should not be dismissed for Petitioner’s failure to 11 exhaust state court remedies. 12 Petitioner filed a motion to stay the proceedings to permit 13 Petitioner to exhaust state court remedies, along with an 14 explanation of the status of the proceedings supported by copies 15 of documents submitted to the state courts. 16 After multiple extensions of time, In the petition, Petitioner alleged that he was an inmate of 17 the Centinela State Prison1 serving a sentence of fifty-seven 18 (57) years to life imposed on January 29, 2007, by the Stanislaus 19 County Superior Court for convictions of attempted murder, 20 brandishing a firearm at a peace officer, assault with a deadly 21 weapon, and being a felon in possession of a firearm with gang 22 enhancements. 23 and alleges the following claims: 24 ineffective assistance in violation of the Sixth and Fourteenth 25 Amendments by failing to require the prosecution to prove 26 predicate acts under Cal. Pen. Code § 186.22(f), a gang (Pet. 1.) Petitioner challenges his conviction 1) his trial counsel rendered 27 28 1 The docket reflects a notice of change of address to Pleasant Valley State Prison in Coalinga, California, filed on July 11, 2011. 3 1 enhancement statute, and by failing to object to the application 2 of the statute where there was an absence of evidence of ongoing 3 association (pet. 26-31); 2) Petitioner’s rights under the Fifth 4 Amendment and the Miranda decision were violated by the use of 5 his alleged admission to a California corrections counselor 6 during a classification intake procedure that he was a “Blood 7 gang member” (id. at 32-33); 3) Petitioner’s right to due process 8 of law guaranteed by the Sixth and Fourteenth Amendments as well 9 as by the California Constitution was violated by the use of an 10 unduly suggestive pretrial identification procedure (id. at 35- 11 37); and 4) Petitioner’s right under the Sixth and Fourteenth 12 Amendments to the effective assistance of counsel was violated by 13 appellate counsel’s failure to raise the previous three grounds 14 on direct appeal (id. at 38-39). 15 However, absent from the petition were any allegations that 16 as to these claims, state judicial remedies were exhausted; 17 instead, Petitioner alleged that other issues had been presented 18 on appeal and in a petition for review. 19 Review of the motion for stay and the response to the order 20 to show cause reveals that in October 2010, after Petitioner’s 21 petition for review by the California Supreme Court was denied, 22 Petitioner filed a habeas petition in the Stanislaus County 23 Superior Court in which he raised the following claims: 24 ineffective assistance of trial counsel based on counsel’s 25 failure to force the prosecution to prove the requisite 26 “predicate acts” to substantiate gang enhancements under Cal. 27 Pen. Code § 186.22; 2) ineffective assistance of trial counsel 28 based on counsel’s failure to object to admission of Petitioner’s 4 1) 1 statement of gang membership made to correctional officers during 2 a classification proceeding; 3) ineffective assistance of trial 3 counsel based on counsel’s failure to object to an unduly 4 suggestive pretrial identification; 4) and ineffective assistance 5 of 6 substantive issues at trial or on appeal.2 7 Petitioner is proceeding to exhaust remaining state court 8 remedies as to these claims. appellate counsel in failing to raise the foregoing (Doc. 13, 9-10.) 9 Petitioner has thus admitted that both presently and at the 10 time he filed the petition, Petitioner’s state court remedies as 11 to all the claims raised in the petition remained unexhausted. 12 IV. Exhaustion of State Court Remedies and Petitioner’s Motion for a Stay 13 A petitioner who is in state custody and wishes to challenge 14 collaterally a conviction by a petition for writ of habeas corpus 15 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). 16 The exhaustion doctrine is based on comity to the state court and 17 gives the state court the initial opportunity to correct the 18 state's alleged constitutional deprivations. Coleman v. 19 Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 20 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 21 1988). 22 A petitioner can satisfy the exhaustion requirement by 23 providing the highest state court with the necessary jurisdiction 24 a full and fair opportunity to consider each claim before 25 26 27 28 2 It is unclear whether Petitioner raises the substantive issues as well as the ineffective assistance of counsel based on counsel’s failure to raise those issues because the petition itself was not provided by Petitioner; rather, the summary of the issues pending in state court is based on the Superior Court’s order denying the petition. 5 1 presenting it to the federal court, and demonstrating that no 2 state remedy remains available. 3 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 4 1996). 5 was given a full and fair opportunity to hear a claim if the 6 petitioner has presented the highest state court with the claim's 7 factual and legal basis. 8 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 9 (1992), superceded by statute as stated in Williams v. Taylor, 10 11 Picard v. Connor, 404 U.S. 270, A federal court will find that the highest state court Duncan v. Henry, 513 U.S. 364, 365 529 U.S. 362 (2000) (factual basis). Additionally, the petitioner must have specifically told the 12 state court that he was raising a federal constitutional claim. 13 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 14 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala 15 v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 16 133 F.3d 1240, 1241 (9th Cir. 1998). 17 States Supreme Court reiterated the rule as follows: 18 19 20 21 22 23 24 25 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 process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 26 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule 27 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 28 6 1 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 2 Cir. 2001), stating: 3 4 5 6 7 8 9 10 11 12 13 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, 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. 15 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 16 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 17 2001). 18 A district court has discretion to stay a petition which it 19 may validly consider on the merits. Rhines v. Weber, 544 U.S. 20 269, 276 (2005); King v. Ryan, 564 F.3d 1133, 1138-39 (9th Cir. 21 2009). A petition that contains both exhausted and unexhausted 22 claims (a “mixed” petition) may be stayed to allow a petitioner 23 to exhaust state court remedies either under Rhines, or under 24 Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). King v. Ryan, 564 25 F.3d 1133, 1138-41 (9th Cir. 2009). 26 However, where none of a petitioner’s claims has been 27 presented to the highest state court as required by the 28 7 1 exhaustion doctrine, the Court must dismiss the petition. 2 Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) 3 (declining to extend the authority to stay a petition under 4 Rhines v. Weber to petitions containing no exhausted claims); 5 Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (requiring 6 dismissal upon the filing of a motion to dismiss a petition 7 containing no exhausted claims). 8 hold a mixed petition in abeyance pending exhaustion of the 9 unexhausted claims has not been extended to petitions that 10 contain no exhausted claims. The authority of a court to Raspberry, 448 F.3d at 1154. 11 Although the Supreme Court in dicta has adverted to the 12 possibility of filing a protective petition to permit exhaustion 13 of claims stated therein, the suggestion was made in connection 14 with a discussion of a Rhines stay, which is appropriate in cases 15 involving not a fully unexhausted petition such as that in the 16 present case, but rather a “mixed” petition containing both 17 exhausted and unexhausted claims. 18 U.S. 408, 416-417 (2005). 19 pursuant to Kelly v. Small, 315 F.3d 1063, 1070 involves 20 amendment of the petition to remove unexhausted claims and 21 staying the exhausted claims. 22 petitions and is unavailable in cases involving fully unexhausted 23 petitions. 24 See, Pace v. Diguglielmo, 544 Further, the stay procedure authorized Thus, it also applies to mixed The Court thus concludes that Petitioner is not entitled to 25 a stay pursuant to either Rhines or Kelly because the petition 26 contains no exhausted claims. 27 28 Accordingly, Petitioner’s motion for a stay is DENIED. /// 8 1 V. 2 Because the petition contains only unexhausted claims, the Dismissal of the Petition 3 Court must dismiss the petition. 4 1150, 1154; Jiminez v. Rice, 276 F.3d 478, 481. 5 6 Raspberry v. Garcia, 448 F.3d Accordingly, it will be recommended that the petition be dismissed.3 7 VI. 8 Unless a circuit justice or judge issues a certificate of 9 Certificate of Appealability appealability, an appeal may not be taken to the Court of Appeals 10 from the final order in a habeas proceeding in which the 11 detention complained of arises out of process issued by a state 12 court. 13 U.S. 322, 336 (2003). 14 only if the applicant makes a substantial showing of the denial 15 of a constitutional right. 16 petitioner must show that reasonable jurists could debate whether 17 the petition should have been resolved in a different manner or 18 that the issues presented were adequate to deserve encouragement 19 to proceed further. 20 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 21 certificate should issue if the Petitioner shows that jurists of 22 reason would find it debatable: (1) whether the petition states a 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 23 3 24 25 26 27 28 The Court notes that a dismissal for failure to exhaust is not a bar to returning to federal court after exhaustion of available state remedies. See, Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). The Court further informs Petitioner that a dismissal for failure to exhaust will not itself bar him from returning to federal court after exhausting his available state remedies. However, this does not mean that Petitioner will not be subject to the one-year statute of limitations imposed by 28 U.S.C. § 2244(d). Although the limitations period is tolled while a properly filed request for collateral review is pending in state court, 28 U.S.C. § 2244(d)(2), it is not tolled for the time an application is pending in federal court. Duncan v. Walker, 533 U.S. 167, 172 (2001). 9 1 valid claim of the denial of a constitutional right, and 2 (2) whether the district court was correct in any procedural 3 ruling. 4 Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). In determining this issue, a court conducts an overview of 5 the claims in the habeas petition, generally assesses their 6 merits, and determines whether the resolution was debatable among 7 jurists of reason or wrong. 8 applicant to show more than an absence of frivolity or the 9 existence of mere good faith; however, it is not necessary for an Id. It is necessary for an 10 applicant to show that the appeal will succeed. 11 Cockrell, 537 U.S. at 338. Miller-El v. 12 A district court must issue or deny a certificate of 13 appealability when it enters a final order adverse to the 14 applicant. 15 Here, it does not appear that reasonable jurists could debate 16 whether the petition should have been resolved in a different 17 manner. 18 denial of a constitutional right. 19 20 Rule 11(a) of the Rules Governing Section 2254 Cases. Petitioner has not made a substantial showing of the Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. 21 VII. 22 Accordingly, it is RECOMMENDED that: 23 1) Recommendation The petition be DISMISSED because Petitioner has failed 24 to exhaust his state court remedies as to any of the claims in 25 the petition; and 26 27 28 2) The Court DECLINE to issue a certificate of appealability; and 3) The Clerk be DIRECTED to close the case. 10 1 These findings and recommendations are submitted to the 2 United States District Court Judge assigned to the case, pursuant 3 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 4 the Local Rules of Practice for the United States District Court, 5 Eastern District of California. 6 being served with a copy, any party may file written objections 7 with the Court and serve a copy on all parties. 8 should be captioned “Objections to Magistrate Judge’s Findings 9 and Recommendations.” Within thirty (30) days after Such a document Replies to the objections shall be served 10 and filed within fourteen (14) days (plus three (3) days if 11 served by mail) after service of the objections. 12 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 13 § 636 (b)(1)(C). 14 objections within the specified time may waive the right to 15 appeal the District Court’s order. 16 1153 (9th Cir. 1991). The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 17 18 IT IS SO ORDERED. 19 Dated: ie14hj December 12, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 11