(HC)Manago v. Cate, No. 1:2011cv01172 - Document 26 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Barbara A. McAuliffe on 10/22/2012 recommending that 22 MOTION to DISMISS be granted. Referred to Judge Anthony W. Ishii; Objections to F&R due by 11/26/2012. (Lundstrom, T)
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(HC)Manago v. Cate Doc. 26 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 STEWART MANAGO, 11 ) ) ) ) ) ) ) Petitioner, 12 v. 13 MATTHEW CATE, 1:11-cv—01172–AWI-BAM-HC FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 22, 1, 11) FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO ) DISMISS, DISMISS THE ACTION, AND ) DECLINE TO ISSUE A CERTIFICATE OF ) APPEALABILITY (DOC. 1) ) ) 14 Respondent. 15 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. 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 21 Rules 302 and 304. 22 motion to dismiss the petition on the grounds of a failure to 23 exhaust state court remedies and procedural default. 24 was filed on June 18, 2012, and Petitioner filed opposition with 25 a declaration on July 9, 2012. The matter has been referred to the Pending before the Court is Respondent’s The motion No reply was filed. 26 I. 27 Because the petition was filed after April 24, 1996, the 28 Proceeding by a Motion to Dismiss effective date of the Antiterrorism and Effective Death Penalty 1 Dockets.Justia.com 1 Act of 1996 (AEDPA), the AEDPA applies to the petition. 2 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 3 1484, 1499 (9th Cir. 1997). Lindh v. 4 A district court may entertain a petition for a writ of 5 habeas corpus by a person in custody pursuant to the judgment of 6 a state court only on the ground that the custody is in violation 7 of the Constitution, laws, or treaties of the United States. 8 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 9 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 10 11 28 16 (2010) (per curiam). Rule 4 of the Rules Governing Section 2254 Cases in the 12 United States District Courts (Habeas Rules) allows a district 13 court to dismiss a petition if it “plainly appears from the face 14 of the petition and any exhibits annexed to it that the 15 petitioner is not entitled to relief in the district court....” 16 The Ninth Circuit has allowed respondents to file motions to 17 dismiss pursuant to Rule 4 instead of answers if the motion to 18 dismiss attacks the pleadings by claiming that the petitioner has 19 failed to exhaust state remedies or has violated the state’s 20 procedural rules. 21 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 22 a petition for failure to exhaust state remedies). 23 See, e.g., O’Bremski v. Maass, 915 F.2d 418, Further, a respondent may file a motion to dismiss after the 24 Court orders the respondent to respond, and the Court should use 25 Rule 4 standards to review a motion to dismiss filed before a 26 formal answer. 27 n.12 (C.D.Cal. 1982). 28 See, Hillery v. Pulley, 533 F. Supp. 1189, 1194 & In this case, upon being directed to respond to the petition 2 1 by way of answer or motion, Respondent filed the motion to 2 dismiss. 3 found in the pleadings and in copies of the official records of 4 state prison and judicial proceedings which have been provided by 5 the parties, and as to which there is no factual dispute. 6 7 The material facts pertinent to the motion are to be The Court will therefore review Respondent’s motion to dismiss pursuant to its authority under Rule 4. 8 II. 9 Petitioner, an inmate of the California Correctional Background 10 Institution at Tehachapi, California (CCI), challenges his 11 validation as an associate of the Black Guerrilla Family (BGF), 12 which occurred on December 31, 2009, while Petitioner was an 13 inmate of the California State Prison at Sacramento (CSP-SAC). 14 (Pet., doc. 1, 18.) 15 Petitioner raises the following claims in the petition: 1) 16 officials of the California Department of Corrections and 17 Rehabilitation (CDCR) have abused the prison gang validation 18 procedure as a ruse to punish the Petitioner for exercising his 19 constitutional right to file complaints regarding staff’s 20 criminal behavior within the CDCR (id. at 5, 21,); 2) CDCR and 21 prison officials illegally read Petitioner’s confidential legal 22 materials and work product concerning pending litigation against 23 other CDCR agents in order to start a prison gang validation 24 proceeding as a ruse to punish the Petitioner for filing 25 grievances (id. at 7, 25); 3) CDCR and prison officials corruptly 26 conspired to abuse the prison gang validation procedures as a 27 ruse to punish the Petitioner for filing inmate grievances 28 against CCI staff in violation of the First Amendment and without 3 1 a legitimate or valid penological purpose (id. at 29-30, 69-70); 2 4) prison officials used the gang validation procedure as a ruse 3 to punish Petitioner for reading Black militant literature which 4 Petitioner had a First Amendment right to read (id. at 31); 5) 5 CDCR and prison officials corruptly conspired to have Petitioner 6 validated as an active associate of the BGF and to retain him in 7 the Security Housing Unit (SHU) based on false, unreliable, and 8 misleading information, knowing that it would subject Petitioner 9 to a risk of retaliation and retribution from other groups in 10 prison who are opposed to the BGF, which resulted in the change 11 of Petitioner’s release date from June 2013 to October 2016 (id. 12 at 32, 54); 6) Petitioner has a protected liberty interest not to 13 be placed into the SHU for an indeterminate term based on a false 14 and retaliatory prison gang validation which resulted from 15 inadequate procedural safeguards in the validation process and in 16 the procedures governing periodic review of inmates assigned to 17 indeterminate terms in the SHU for gang affiliation, and 18 Petitioner’s right to due process of law was violated by an 19 indeterminate placement in the SHU without a determination that 20 the information relied upon had some indicia of reliability, 21 without the support of some evidence in the record, and without 22 an opportunity to present his views to the decision maker (id. at 23 55, 57-58, 66-68); and 7) Petitioner was subjected to an ex post 24 facto law by the application to him of Cal. Pen. Code §§ 2933(A)- 25 (B) and 3057(D), as effective on January 25, 2010, which rendered 26 gang-validated SHU inmates ineligible to earn time credits (id. 27 at 56, 61-62). 28 Petitioner requests the following relief: expungement from 4 1 his “C” file of the false, unreliable and insufficient 2 information used to validate his active association with the BGF; 3 release from the SHU; and return of various materials allegedly 4 taken wrongfully by CDCR agents. (Pet. 72-73.) 5 III. 6 In 2010, Petitioner filed in prison what he described as a State Administrative and Judicial Proceedings 7 citizen’s complaint concerning employee conduct pursuant to Cal. 8 Pen. Code § 832.5 and Cal. Code Regs., tit. 15, §§ 3004 and 9 3391.1 The complaint was filed against Correctional Officers 10 Tyree, Turmezei, and unnamed “Does” for conspiring to retaliate 11 against Petitioner for having reported staff misconduct by 12 wrongfully having Petitioner placed into administrative 13 segregation based on false and misleading information concerning 14 prison gang activities. 15 Petitioner requested that the matter be investigated by state and 16 federal authorities and that Petitioner be awarded two million 17 dollars in damages for retaliation. 18 that the matter be processed as a staff complaint. 19 31.) 20 (Mot., Ex. A, doc. 22-4 at 22.) (Id.) Petitioner also asked (Id. at 30- Petitioner’s complaint was denied at the second level on 21 March 8, 2010. 22 2010, that was directed to Petitioner concerning the response (Id. at 23, 32.) A memorandum dated March 8, 23 24 25 26 27 28 1 The date of submission is illegible. (Doc. 22-4 at 22.) Further, because some of the pertinent pages of the exhibits to the motion are missing from the courtesy copy provided to the Court, page references are to the page numbers at the top of the page of the electronically filed exhibits that are automatically assigned in the Court’s CM/ECF docketing system. Petitioner’s references are to title 15 of the California Code of Regulations, §§ 3004 (concerning the rights and conduct of inmates and employees) and 3391 (concerning employees’ conduct and complaints concerning employees’ misconduct). 5 1 informed Petitioner that the appeal was being processed as a 2 staff complaint appeal inquiry. 3 Petitioner and a confidential inquiry into the validation 4 information was conducted, and thus the appeal was partially 5 granted; however, the conclusion was that staff did not violate 6 CDCR policy. 7 personnel matters were confidential in nature and that if 8 Petitioner wished to appeal the decision, he had to appeal 9 through the Director’s level of review. 10 (Id. at 32.) An interview with The memorandum informed Petitioner that all staff (Id.) Petitioner indicated his dissatisfaction and requested a 11 Director’s Level Review. 12 Level, Petitioner’s appeal was denied. 13 at 45, doc. 22-5 at 1.) 14 (Id. at 23-27.) At the Director’s (Mot., ex. A, doc. 22-4 Petitioner filed a petition for writ of habeas corpus in the 15 Superior Court of the State of California for the County of Kern 16 (KCSC) on July 22, 2010, in which he challenged the 2009 gang 17 validation. 18 were 1) prison officials abused the gang validation procedure to 19 retaliate against Petitioner for complaints concerning CDCR staff 20 misconduct; 2) CDCR staff illegally read and searched 21 Petitioner’s confidential legal materials and work product in 22 order to start a prison gang validation procedure as a ruse to 23 punish the Petitioner for having filed grievances; 3) the abuse 24 of the prison gang validation procedure violated Petitioner’s 25 First Amendment right to read any literature that did not affect 26 a legitimate penological interest, including Black militant 27 literature; and 4) CDCR prison officials corruptly conspired to 28 have Petitioner validated as an active prison gang associate of (Mot., ex. F.) The grounds stated in the petition 6 1 the BGF and retained him in the SHU based on false, unreliable, 2 and misleading information. 3 and unreliable information be expunged from his “C” file, his 4 literature be returned, and that Petitioner be released from the 5 SHU. 6 Petitioner requested that the false (Mot., ex. F, doc. 22-14 at 2-19.) The KCSC denied the petition. (Mot., Ex. E, Ord. dated 7 September 22, 2010 at 3-4.) In the order denying the petition, 8 the KCSC concluded that various items of evidence were useable 9 sources to sustain the gang validation. (Id. at 2.) Near the 10 end of the court’s discussion of the evidence used to validate 11 Petitioner’s gang association, the KCSC stated the following: 12 13 14 15 16 17 18 19 Other staff complaints (sic) found no evidence of retaliation against petitioner by corrections officials. Moreover, petitioner failed to exhaust his administrative remedies concerning the gang validation. Pursuit of and exhaustion of administrative remedies is a prerequisite to seeking habeas corpus relief. In re Dexter (1979) 25 Cal.3d 921, 925, In re Muszalski (1975) 52 Cal.3d 500, 508. The June 16, 2010 Directors’ Level decision dealt with a staff complaint regarding fabrication of the gang validation by Officers Turmezei and Sgt. Tyree. That decision opined that petitioner is not privy to staff complaint investigatory findings since they are privileged under P.C. Sections 832.7 and 832.8 due to their (sic) confidential personnel decisions. 20 21 22 23 24 25 26 It did not directly address the evidence to sustain the validation. However, even if petitioner exhausted his administrative remedies, the court finds more than sufficient evidence to sustain the gang validation. So long as there is evidence to sustain the gang validation, this court will not disturb it. In re Lucero (1992) 4 Cal.App.4th 572, 575, Cato v. Rushen (1987) 824 F.2d 703, 705 (9th Cir.). Contrary to petitioner’s allegation that he cannot belong to two gangs, the evidence shows otherwise. On the basis of the foregoing, the petition for writ of habeas corpus is accordingly denied. 27 (Id.) 28 7 1 Petitioner sought reconsideration, which the KCSC denied on 2 November 29, 2010, ruling that no new evidence was submitted to 3 warrant a change of position, and noting that the court was aware 4 of no authority that permitted a court to reconsider a petition 5 for writ of habeas corpus. 6 (Mot., exs. H, G.) Petitioner filed a petition in the Court of Appeal of the 7 State of California, Fifth Appellate District (CCA), (mot., ex. 8 D), which the court denied on November 30, 2010, without a 9 statement of reasons or citation to any authority, (mot., ex. C). 10 Petitioner filed a petition for writ of habeas corpus in the 11 California Supreme Court (CSC), alleging that the CCA’s denial of 12 his petition violated his rights under the First, Eighth, and 13 Fourteenth Amendments, and seeking the same relief sought in the 14 KCSC. 15 June 29, 2011, without a statement of reasons or citation of 16 authority. (Mot., ex. A at 2-49.) The CSC denied the petition on (Mot., ex. B.) 17 IV. 18 Respondent argues that the case should be dismissed because Procedural Default 19 Petitioner’s claims are procedurally defaulted based on 20 Petitioner’s failure to exhaust his state administrative remedies 21 as required under California law. 22 23 A. Petitioner’s Procedural Default The doctrine of procedural default is a specific application 24 of the more general doctrine of independent state grounds. 25 provides that when state court decision on a claim rests on a 26 prisoner’s violation of either a state procedural rule that bars 27 adjudication of the case on the merits or a state substantive 28 rule that is dispositive of the case, and the state law ground is 8 It 1 independent of the federal question and adequate to support the 2 judgment such that direct review in the United States Supreme 3 Court would be barred, then the prisoner may not raise the claim 4 in federal habeas absent a showing of cause and prejudice or that 5 a failure to consider the claim will result in a fundamental 6 miscarriage of justice. 7 1120, 1127 (2011); Coleman v. Thompson, 501 U.S. 722, 729-30 8 (1991); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003); 9 Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994). Walker v. Martin, - U.S. -, 131 S.Ct. The doctrine 10 applies regardless of whether the default occurred at trial, on 11 appeal, or on state collateral review. 12 U.S. 446, 451 (2000). 13 Edwards v. Carpenter, 529 On federal habeas corpus review, when it fairly appears that 14 the state court judgment rested primarily on federal law or was 15 interwoven with federal law, and the adequacy and independence of 16 any possible state law ground is not clear from the face of the 17 petition, it is presumed that the state court decided the case 18 the way it did because it believed that federal law required it 19 to do so. 20 Reed, 489 U.S. 255, 266 (1989). 21 default does not bar consideration of a federal claim on either 22 direct or habeas review unless the last state court rendering a 23 judgment in the case clearly and expressly stated that its 24 judgment rested on a procedural bar. 25 U.S. at 733, 735-36; Harris v. Reed, 489 U.S. at 266. 26 state court discusses a state procedural bar as a separate basis 27 for its decision but then, in an alternative holding, discusses 28 the merits of the federal claim, the court has clearly and Coleman v. Thompson, 501 U.S. at 734-36; Harris v. In such a case, a procedural 9 Coleman v. Thompson, 501 Where a 1 expressly stated its reliance on a procedural ground, and the 2 procedural bar applies. 3 (9th Cir. 2003); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 4 1992) (citing Coleman v. Thompson, 501 U.S. 722 and Harris v. 5 Reed, 489 U.S. at 264 n.10). 6 Bennett v. Mueller, 322 F.3d 573, 580 Here, the KCSC issued a reasoned decision; however, both the 7 CCA and the CSC summarily denied Petitioner’s habeas petitions. 8 Where there has been one reasoned state judgment rejecting a 9 federal claim, later, unexplained orders upholding that judgment 10 or rejecting the same claim are presumed to rest upon the same 11 ground. 12 where the California Supreme Court denies a habeas petition 13 without citation or comment, a district court will “look through” 14 the unexplained decision of that state court to the last reasoned 15 decision of a lower court as the relevant state court 16 determination. 17 Maddox, 366 F.3d 992, 998 n.5 (9th Cir. 2004). 18 the burden to overcome or rebut the presumption by strong 19 evidence that the presumption, as applied, is wrong. 20 U.S. at 804. 21 basis to overcome the presumption. 22 through the unexplained appellate decisions to the decision of 23 the KCSC. 24 Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Thus, Ylst v. Nunnemaker, 501 U.S. at 803-04; Taylor v. A petitioner has Ylst, 501 Here, the Court has not been presented with any The Court will thus look The decision of the KCSC shows that although the court 25 considered and found sufficient evidence supporting the gang 26 validation, it also expressly and alternatively concluded that 27 Petitioner failed to exhaust his administrative remedies 28 concerning the gang validation and noted that such exhaustion was 10 1 a prerequisite to seeking habeas relief. 2 noted not only the procedural default of filing only a staff 3 complaint concerning the conduct of two officers, which was a 4 confidential personnel matter, but also the resulting decision on 5 the complaint, which did not directly address the evidence to 6 sustain the gang validation. 7 state court clearly and expressly indicated it reliance on 8 Petitioner’s actual procedural default as an alternative holding. 9 (Id.) (Ex. E.) The KCSC It thus appears that the Because state procedural default is an affirmative defense, 10 the state has the obligation to plead the defense or lose the 11 right to assert the defense thereafter. 12 F.3d at 585. 13 persuasion as to the adequacy and independence of the pertinent 14 rule. 15 the existence of an independent and adequate state procedural 16 ground as an affirmative defense, the burden to place the defense 17 in issue shifts to the petitioner, who may satisfy the burden by 18 asserting specific factual allegations that demonstrate the 19 inadequacy of the state procedure, including citation to 20 authority demonstrating inconsistent application of the rule. 21 Id. at 586. 22 of proof of the defense is on the state. 23 Bennett v. Mueller, 322 Further, the state bears the ultimate burden of Id. at 585-86. However, once the state adequately pleads Once the petitioner has done so, the ultimate burden Id. at 586. Here, Respondent has raised the procedural default and has 24 set forth authority supporting the existence of an independent 25 and adequate state procedural ground. 26 Respondent notes, the state court cited In re Dexter, 25 Cal.3d 27 921, 925 (1979), which stands for the proposition that a state 28 habeas petitioner “will not be afforded judicial relief unless he 11 (Mot., doc. 22, 5-6.) As 1 has exhausted available state administrative remedies.” 2 Dexter, 25 Cal.3d at 925. 3 In re For a state procedural rule to be independent, the state law 4 basis for the decision must not be interwoven with federal law. 5 Bennett v. Mueller, 322 F.3d at 581. 6 interwoven if the state has made application of the procedural 7 bar depend on an antecedent ruling on federal law, such as the 8 determination of whether federal constitutional error has been 9 committed. Id. A state law ground is so Independence is determined as of the date of the 10 state court order that imposed the procedural bar. 11 Kernan, 244 F.3d 702, 704 (9th Cir. 2001). 12 La Crosse v. Here, California’s administrative exhaustion requirement 13 proceeds from state statutory and regulatory law. 14 Code § 5058 (authorizing the promulgation of regulations for 15 administration of the prisons); Cal. Code Regs., tit. 15, 16 § 3084.1 (providing a comprehensive and mandatory administrative 17 appeal process for inmates’ grievances or challenges to prison 18 rules). 19 exhaustion requirement as a “general rule” and cited multiple 20 California cases. 21 52 Cal.App.3d 500 (1975), a case also cited by the KCSC in its 22 order denying Petitioner’s habeas petition, the court described 23 the exhaustion requirement as being “well settled as a general 24 proposition.” 25 administrative exhaustion rule thus is based solely on state law 26 and thus is independent of federal law. 27 2011 WL 976606, *8-9 (No. 10CV918-JM(JMA), S.D.Cal. Feb. 18, 28 2011) (collecting state authorities). See, Cal. Pen. In Dexter, the court referred to the administrative Dexter, 25 Cal.3d at 925. In In re Muszalski, Muszalski, 52 Cal.App.3d at 503. 12 California’s See, Edwards v. Small, 1 In the absence of exceptional circumstances, a procedural 2 ground is “adequate” where it is firmly established and regularly 3 followed at the time of the default. 4 131 S.Ct. at 1127-28. 5 exhaustion requirement has been applied and has been recognized 6 as established. 7 Dist., 17 Cal.2d 280, 292-93 (1941) (describing the rule as a 8 settled, “fundamental rule of procedure laid down by courts of 9 last resort, followed under the doctrine of stare decisis, and Walker v. Martin, –U.S.-, Since 1941, California’s administrative Abeilleira v. District Court of Appeal, Third 10 binding upon all courts”). 11 applied since Abelleira was decided. 12 52 Cal.App.3d at 503 (characterizing the rule as well settled); 13 Rojo v. Kliger, 52 Cal.3d 65, 84 (1990) (describing the rule as 14 “oft-quoted” in connection with the need to exhaust 15 administrative remedies provided for a statutory right); 16 California Correctional Peace Officers Assn. v. State Personnel 17 Bd., 10 Cal.4th 1133, 1148 (1995) (stating that the authorities 18 applying the rule were “so numerous that only the more important 19 ones need be cited” for purposes of illustration); see also, 20 Drake v. Adams, 2009 WL 2474826, *2 (No. 2:07-cv-00577-JKS, 21 E.D.Cal. Aug. 11, 2009) (stating that a review of California 22 cases in which the issue of exhaustion of administrative remedies 23 was decided during the previous ten years revealed no case in 24 which a California appellate court did not deny a petition for 25 writ of habeas corpus for failure to comply with the rule). 26 Thus, the rule applied in the present case was adequate to 27 support the judgment. 28 The rule has been consistently See, e.g., In re Muszalski, Petitioner did not assert specific factual allegations that 13 1 demonstrate the inadequacy of the state procedure. 2 concludes that the state’s rule of exhaustion of administrative 3 remedies was independent and adequate. 4 The Court In response to the motion to dismiss, Petitioner argues that 5 he did exhaust his claims in the state courts, and specifically 6 that his staff complaint was adequate to exhaust his 7 administrative remedies. 8 part of the Prison Litigation Reform Act (PLRA), and authorities 9 applying it, such as Griffin v. Arpaio, 557 F.3d 1117, 1119-20 Petitioner cites to 42 U.S.C. § 1997e, 10 (9th Cir. 2009). 11 adopted in Griffin, his staff complaint was sufficient to alert 12 prison authorities to the nature of the wrong for which redress 13 is sought. 14 Petitioner argues that pursuant to the standard However, Petitioner is not proceeding pursuant to the PLRA. 15 With respect to habeas corpus proceedings, it is established that 16 when a federal court considers the issue of a procedural default, 17 it will not review the propriety of the state court’s application 18 of its default. 19 1999). 20 it lacked subject matter jurisdiction to review state court 21 applications of state procedural rules. 22 has also indicated that a federal court will not review the 23 propriety of a state court’s application of an independent and 24 adequate state law ground, reasoning that if a habeas petitioner 25 has failed to meet a state’s procedural requirements for 26 presenting his federal claims, then the petitioner has deprived 27 the state courts of an opportunity to address the claims in the 28 first instance. Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. In Poland, the court limited its review because it stated Id. The Supreme Court Lambrix v. Singletary, 520 U.S. 518, 523 (1997). 14 1 Such claims could not be reviewed by the United States Supreme 2 Court on direct review because of a lack of jurisdiction to 3 review judgments resting on a state law ground that is 4 independent of the federal question and adequate to support the 5 judgment. 6 require federal courts to apply the independent and adequate 7 state ground doctrine; otherwise, a federal district court or 8 court of appeals would be able to review claims that the United 9 States Supreme Court would have been unable to consider on direct 10 11 review. Id. Equitable considerations of federalism and comity Id. An exception to limited review has been recognized where the 12 state court’s interpretation of the state procedural law is 13 clearly untenable and amounts to a subterfuge to avoid federal 14 review of a deprivation of rights protected by the Constitution. 15 Lopez v. Schriro, 491 F.3d 1029, 1043 (9th Cir. 2007), cert. 16 den., Schriro v. Lopez, 552 U.S. 1224 (2008). 17 Here, Petitioner filed a staff complaint seeking damages 18 because of staff misconduct; Petitioner did not file a grievance 19 seeking to be released from the SHU or to set aside the gang 20 validation because of defects in the process or in the nature or 21 quantum of evidence supporting the validation. 22 tit. 15, § 3084.2 requires the inmate to raise one issue or 23 related set of issues per appeal form and to describe on the form 24 the specific issue and action requested; it expressly states that 25 any decision rendered will pertain only to the present appeal 26 issue and “requested action(s).” 27 It was thus tenable for the state court to rule that Petitioner 28 failed to exhaust administrative remedies. 15 Cal. Code Regs., § 3084.2(a)(1), (2); (b)(1). Petitioner arguably 1 failed to comply with the requirement of § 3084.2(a)(2) because 2 he failed to describe any specific issue and action requested 3 beyond the staff misconduct and request for money damages. 4 Further, the regulations specifically provide for prison 5 staff to determine whether an appeal alleging staff misconduct 6 should be processed as a routine appeal or as a staff complaint; 7 if an appeal is processed as a staff complaint, then the inmate 8 will be notified that any other issues besides the staff 9 misconduct that are present in the appeal raising the staff 10 complaint may only be appealed separately, and thus re-submission 11 of those issues within thirty calendar days is required if the 12 intention is to seek resolution of such matters. 13 Regs., tit. 15, §§ 3084.5(b)(4); 3084.9(i). 14 the exceptional nature of a staff complaint and the failure of 15 Petitioner to include other issues in the staff complaint, the 16 state court tenably and reasonably could have concluded that 17 Petitioner’s failure to file a separate grievance concerning his 18 gang validation, status as a gang associate, and his housing 19 assignment, as well as his failure to seek the specific action of 20 invalidating the gang validation and releasing Petitioner from 21 the SHU, constituted a failure to exhaust administrative remedies 22 as to those issues. 23 Cal. Code Thus, in light of The Court concludes that the state court’s application of 24 its procedural bar was not clearly untenable and did not amount 25 to a subterfuge to avoid federal review. 26 not review the state court’s application of its procedural bar. This Court thus will 27 Petitioner further contends that his petition is not 28 procedurally defaulted because the state court adjudicated his 16 1 claim or claims on the merits. 2 state court clearly and expressly imposed a procedural bar as an 3 alternative to a review of the merits, and thus, the procedural 4 bar was not vitiated. 5 6 B. However, as previously noted, the Cause and Prejudice If the respondent has asserted the procedural default 7 doctrine in a timely and proper fashion, and if the default 8 provides an independent and adequate state procedural ground for 9 decision, the petitioner is barred from raising the defaulted 10 claims unless the petitioner can 1) excuse the default by 11 demonstrating cause for the default and actual prejudice as a 12 result, or 2) show that the case comes within the category of 13 cases the Supreme Court has characterized as fundamental 14 miscarriages of justice. 15 Coleman v. Thompson, 501 U.S. at 722. Cause is a legitimate excuse for the default. Thomas v. 16 Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991). 17 cause generally means that the petitioner must show that some 18 objective factor external to the defense impeded efforts to 19 construct or raise a claim, such as a showing that the factual or 20 legal basis for a claim was not reasonably available, counsel was 21 ineffective in failing to preserve a claim, or some interference 22 by officials made compliance impracticable. 23 501 U.S. at 753 (citing Murray v. Carrier, 477 U.S. 478, 488, 492 24 (1986)). 25 A demonstration of Coleman v. Thompson, Here, Petitioner has not alleged any facts that would 26 support a conclusion that there was any objective factor external 27 to the defense that impeded efforts to construct or raise a 28 claim. Petitioner’s staff complaint showed that he knew the 17 1 factual basis for his claim, and there is no basis for an 2 inference that the legal basis of his claim was not reasonably 3 available. 4 is no indication of any interference by officials. 5 Petitioner was not represented by counsel, and there In a declaration, Petitioner re-alleges his claims of 6 retaliatory gang validation and reiterates facts in support of 7 those claims concerning the allegedly retaliatory gang 8 validation. 9 Petitioner’s reports of staff misconduct in the CDCR within the He also details a more temporally remote history of 10 past two decades. 11 establish any cause for Petitioner’s procedural default. 12 (Doc. 24, 13-42.) These facts do not In asserting that he was not a member of the BGF, Petitioner 13 alleges that he suffers from “major mental illnesses,” takes 14 unspecified anti-psychotic medications, and was housed for many, 15 unspecified years in the enhanced outpatient program; thus, he 16 could not be a member of a gang because no California prison gang 17 members or associates are permitted to take such medications or 18 be housed within the CDCR’s mental health programs. (Id. at 32- 19 33.) 20 conclusion that any external factor or conduct related to his 21 mental condition excused his procedural default. 22 23 24 25 Petitioner’s allegations are general and do not support a It is concluded that Petitioner has not shown cause for his procedural default. C. Miscarriage of Justice A procedural default may be excused for a fundamental 26 miscarriage of justice, such as where a petitioner can show that 27 a constitutional violation has probably resulted in the 28 conviction of one who is actually innocent. 18 See, Murray v. 1 Carrier, 477 U.S. 478, 495-96 (1986). 2 showing of facts warranting a conclusion that there was a 3 fundamental miscarriage of justice. 4 Petitioner has made no Accordingly, it is concluded that this Court’s review of 5 Petitioner’s petition is foreclosed by Petitioner’s procedural 6 default. 7 dismiss be granted. It will thus be recommended that Respondent’s motion to 8 V. 9 Respondent argues that Petitioner’s claims should be Exhaustion of State Court Remedies 10 dismissed because Petitioner did not exhaust his state court 11 remedies as to his claims. 12 Pursuant to the foregoing analysis, this Court has concluded 13 that Petitioner’s claims were procedurally defaulted. 14 conclusion essentially moots the issue of exhaustion of state 15 court remedies. 16 dispositive, and it is thus unnecessary to reach Respondent’s 17 additional argument that Petitioner did not exhaust state court 18 remedies as to his claims. 19 (9th Cir. 2011). 20 21 This The procedural default determination is Cooper v. Neven, 641 F.3d 322, 327-28 Alternatively, the Court concludes that Petitioner failed to exhaust his state court remedies. 22 A petitioner who is in state custody and wishes to challenge 23 collaterally a conviction by a petition for writ of habeas corpus 24 must exhaust state judicial remedies. 25 The exhaustion doctrine is based on comity to the state court and 26 gives the state court the initial opportunity to correct the 27 state's alleged constitutional deprivations. 28 Thompson, 501 U.S. at 731; Rose v. Lundy, 455 U.S. 509, 518 19 28 U.S.C. § 2254(b)(1). Coleman v. 1 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988). 2 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 Although non-exhaustion of remedies has been viewed as an 16 affirmative defense, it is the petitioner’s burden to prove that 17 state judicial remedies were properly exhausted. 18 § 2254(b)(1)(A); Darr v. Burford, 339 U.S. 200, 218-19 (1950), 19 overruled in part on other grounds in Fay v. Noia, 372 U.S. 391 20 (1963); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). 21 If available state court remedies have not been exhausted as to 22 all claims, a district court must dismiss a petition. 23 Lundy, 455 U.S. at 515-16. 24 28 U.S.C. Rose v. A claim must be fairly presented to the state’s highest 25 court through the appropriate procedures. 26 404 U.S. at 275. 27 highest court does not reach the merits of a claim because of the 28 procedural context in which it was presented. See, Picard v. Connor, A claim is not fairly presented if the state’s 20 See, e.g., 1 Castille v. Peoples, 489 U.S. 346, 351 (1989) (holding that a 2 petitioner’s claims were not fairly presented where he presented 3 his claims to the highest state court for the first and only time 4 in petitions for allocatur, in which review of the merits was not 5 a matter of right, but rather was discretionary when there were 6 special and important reasons for review); Pitchess v. Davis, 421 7 U.S. 482, 488 (1975) (holding that a claim was not fairly 8 presented by filing pretrial petitions for a writ of prohibition 9 in the state intermediate and highest appellate courts where 10 state law established that a writ of prohibition was an 11 extraordinary writ whose use for pretrial review was normally 12 limited to questions of first impression and general importance, 13 the petitions were denied without opinion such that the denial 14 could not be fairly read as an adjudication on the merits of the 15 claim, and the denial did not bar raising the same points on 16 post-trial appellate review, which remained available); Roettgen 17 v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (holding that a claim 18 was not fairly presented by bypassing direct appeal or an 19 authorized mode of collateral attack that foreclosed habeas 20 corpus, and instead filing a petition for habeas corpus). 21 Here, the state courts did not reach the merits of 22 Petitioner’s claims, but rather denied his petitions for failure 23 to exhaust administrative remedies pursuant to a rule that 24 foreclosed judicial relief absent such exhaustion. 25 Petitioner’s failure to comply with the prison’s administrative 26 remedies foreclosed consideration of the merits of the petition. 27 28 Thus, Accordingly, Petitioner failed to exhaust his state court remedies. 21 1 In view of this conclusion, it is unnecessary to consider 2 Respondent’s claim that Petitioner failed to raise his ex post 3 facto claim in his petition to the California Supreme Court. 4 In summary, it is concluded that Respondent’s motion to 5 dismiss should be granted. 6 VI. 7 Assuming that the Court adopts the following recommendation 8 to grant the motion to dismiss, it must be considered whether to 9 issue a certificate of appealability. 10 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 22 A Slack v. McDaniel, 1 In determining this issue, a court conducts an overview of 2 the claims in the habeas petition, generally assesses their 3 merits, and determines whether the resolution was debatable among 4 jurists of reason or wrong. 5 applicant to show more than an absence of frivolity or the 6 existence of mere good faith; however, it is not necessary for an 7 applicant to show that the appeal will succeed. 8 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 9 A district court must issue or deny a certificate of 10 appealability when it enters a final order adverse to the 11 applicant. 12 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 13 debate whether the petition should have been resolved in a 14 different manner. 15 of the denial of a constitutional right. 16 17 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. 18 VII. 19 Accordingly, it is RECOMMENDED that: 20 1) Respondent’s motion to dismiss the petition be GRANTED; 21 Recommendations and 22 2) The petition be DISMISSED; and 23 3) The Court DECLINE to issue a certificate of 24 appealability; and 25 4) The Clerk be DIRECTED to close the case. 26 These findings and recommendations are submitted to the 27 United States District Court Judge assigned to the case, pursuant 28 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 23 1 the Local Rules of Practice for the United States District Court, 2 Eastern District of California. 3 being served with a copy, any party may file written objections 4 with the Court and serve a copy on all parties. 5 should be captioned “Objections to Magistrate Judge’s Findings 6 and Recommendations.” 7 and filed within fourteen (14) days (plus three (3) days if 8 served by mail) after service of the objections. 9 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. Within thirty (30) days after Such a document Replies to the objections shall be served The Court will 10 § 636 (b)(1)(C). 11 objections within the specified time may waive the right to 12 appeal the District Court’s order. 13 1153 (9th Cir. 1991). 14 15 The parties are advised that failure to file Martinez v. Ylst, 951 F.2d IT IS SO ORDERED. Dated: 10c20k October 22, 2012 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 24
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