(HC)Alonso v. The People, No. 1:2012cv00359 - Document 10 (E.D. Cal. 2012)
Court Description: ORDER GRANTING Petitioner's Motion to Amend the Petition to Change the Name of Respondent 8 ; ORDER DIRECTING the Clerk to Change the Name of the Respondent; ORDER DISCHARGING Order to Show Cause 7 ; ORDER DIRECTING Petitioner to Withdraw his Unexhausted Claims within Thirty (30) Days of Service or Suffer Dismissal of the Action, signed by Magistrate Judge Sheila K. Oberto on 11/6/12. (30) Day Deadline(Martin-Gill, S)
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(HC)Alonso v. The People Doc. 10 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 EDGARDO ALONSO, 11 Petitioner, 12 13 14 15 16 17 v. M. D. BITER, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) 1:12-cv—00359-SKO-HC ORDER GRANTING PETITIONER’S MOTION TO AMEND THE PETITION TO CHANGE THE NAME OF RESPONDENT (Doc. 8) ORDER DIRECTING THE CLERK TO CHANGE THE NAME OF THE RESPONDENT ORDER DISCHARGING ORDER TO SHOW CAUSE (Doc. 7) 19 ORDER DIRECTING PETITIONER TO WITHDRAW HIS UNEXHAUSTED CLAIMS WITHIN THIRTY (30) DAYS OF SERVICE OR SUFFER DISMISSAL OF THE ACTION 20 DEADLINE: 18 THIRTY (30) DAYS 21 Petitioner is proceeding pro se and in forma pauperis with a 22 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 23 Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to 24 the jurisdiction of the United States Magistrate Judge to conduct 25 all further proceedings in the case, including the entry of final 26 judgment, by manifesting consent in a signed writing filed by 27 Petitioner on May 22, 2012 (doc. 4). 28 1 Dockets.Justia.com 1 Pending before the Court are 1) Petitioner’s motion to amend 2 the petition to name a proper respondent, and 2) Petitioner’s 3 response to the Court’s order to show cause why the petition 4 should not be dismissed for failure to exhaust state court 5 remedies. 6 I. 7 Pending before the Court is Petitioner’s motion to amend the Motion to Amend the Petition to Name a Respondent 8 petition to name a proper respondent, filed on July 13, 2012, in 9 response to the Court’s order of April 23, 2012, granting 10 Petitioner leave to file the motion. 11 Petitioner requests that M. D. Biter, Warden of the Kern 12 Valley State Prison where Petitioner is incarcerated, be named as 13 Respondent in this matter. 14 A petitioner seeking habeas relief must name the state 15 officer having custody of him or her as the respondent to the 16 petition. 17 the United States District Courts (Habeas Rules); Ortiz-Sandoval 18 v. Gomez, 81 F.3d 891, 894 (9th Cir.1996); Stanley v. California 19 Supreme Court, 21 F.3d 359, 360 (9th Cir.1994). 20 person having custody of the prisoner is the warden of the prison 21 because the warden has “day to day control over” the prisoner. 22 Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992). 23 Therefore, Petitioner’s request will be granted. Rule 2(a) of the Rules Governing Section 2254 Cases in Generally, the 24 II. 25 On April 23, 2012, the Court issued an order to Petitioner Discharge of the Order to Show Cause 26 to show cause why the petition should not be dismissed for 27 Petitioner’s failure to exhaust state remedies with respect to 28 his claims. The order was served by mail on Petitioner on the 2 1 same date. 2 On July 13, 2012, after receiving an extension of time to 3 file his response, Petitioner filed a response to the order to 4 show cause which the Court deems timely. 5 Accordingly, the order to show cause will be discharged. 6 III. Failure to Exhaust State Court Remedies as to Some Claims 7 A. Background 8 Petitioner alleges that he is an inmate of the Kern Valley 9 State Prison (KVSP) serving a sentence of fifty-four years to 10 life imposed in the Tulare County Superior Court in June 2009 for 11 attempted murder with gang and gun enhancements. (Pet. 2.) 12 Petitioner raised the following claims in the petition: 1) the 13 trial court abused its discretion in denying Petitioner’s motion 14 to sever counts 1 and 2 from counts 3 through 7 because counts 3 15 through 7 were not eligible for joinder under Cal. Pen. Code 16 § 954; 2) the failure to sever and the introduction of 17 inflammatory gang predicate evidence violated Petitioner’s right 18 to due process and a fair trial; 3) the prosecutor committed 19 prejudicial misconduct by vouching for two key prosecution 20 witnesses and impeaching a defense witness with a non-existent 21 criminal offense, which violated Petitioner’s Fourteenth 22 Amendment right to due process and a fair trial; 4) trial 23 counsel’s failure to impeach witness Rodriguez with prior 24 convictions, request an instruction limiting use of the evidence 25 of gang activity, object to the court’s directions regarding gang 26 expert testimony, object on the basis of due process and pursuant 27 to Cal. Evid. Code § 352 to predicate crime gang evidence, 28 3 1 request an in-custody protective instruction, object and request 2 admonitions concerning various instances of prosecutorial 3 misconduct, impeach witness Rodriguez with prior convictions, 4 request a prophylactic gang evidence instruction, object to 5 unspecified, related misinstructions, challenge inflammatory gang 6 evidence, and request an instruction to prevent diminution of the 7 presumption of innocence all constituted prejudicial, ineffective 8 assistance of counsel; 5) incorrect instructions on imperfect 9 self-defense violated Petitioner’s Fourteenth Amendment right to 10 due process and a fair trial; and 6) cumulative prejudice from 11 the matters forming the substance of many of the aforementioned 12 claims violated Petitioner’s right to due process of law. 13 3-12.) 14 15 (Pet. The Court notes that Petitioner’s first claim was dismissed without leave to amend as a state law claim. 16 In the order to show cause, the Court noted that with 17 respect to exhaustion, Petitioner alleges he presented the 18 following issues to the California Supreme Court: 1) abuse of 19 discretion by the trial court; 2) insufficient defense counsel; 20 and 3) prosecutorial misconduct. 21 from the petition that Petitioner did not raise the claims 22 concerning instructional error and cumulative error, although 23 Petitioner’s allegations are not sufficiently precise to be 24 understood with certainty. 25 (Pet. 13.) It thus appears In his response to the order to show cause, Petitioner 26 states that he failed to exhaust state court remedies with 27 respect to the second claim concerning a violation of due process 28 and the right to a fair trial by the failure to sever or 4 1 bifurcate gang evidence, the fifth claim concerning instructional 2 error with respect to imperfect self-defense, and the sixth claim 3 concerning cumulative prejudice from a combination of some of the 4 other errors. 5 his petition is a “mixed” petition containing some unexhausted 6 claims and some claims as to which state court remedies were 7 exhausted. (Response, doc. 9, 2-3.) Petitioner admits that 8 Petitioner requests that the Court either dismiss the 9 petition without prejudice to give Petitioner an opportunity to 10 exhaust the unexhausted claims, or give Petitioner an opportunity 11 to amend the petition to delete the unexhausted claims and permit 12 review of the properly exhausted claims. 13 B. (Id. at 2-3.) Legal Standards 14 A petitioner who is in state custody and wishes to challenge 15 collaterally a conviction by a petition for writ of habeas corpus 16 must exhaust state judicial remedies. 17 The exhaustion doctrine is based on comity to the state court and 18 gives the state court the initial opportunity to correct the 19 state's alleged constitutional deprivations. 20 Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 21 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 22 1988). 23 28 U.S.C. § 2254(b)(1). Coleman v. A petitioner can satisfy the exhaustion requirement by 24 providing the highest state court with the necessary jurisdiction 25 a full and fair opportunity to consider each claim before 26 presenting it to the federal court, and demonstrating that no 27 state remedy remains available. 28 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. Picard v. Connor, 404 U.S. 270, 5 1 1996). 2 was given a full and fair opportunity to hear a claim if the 3 petitioner has presented the highest state court with the claim's 4 factual and legal basis. 5 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 6 (1992), superceded by statute as stated in Williams v. Taylor, 7 529 U.S. 362 (2000) (factual basis). 8 9 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 state court that he was raising a federal constitutional claim. 10 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 11 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala 12 v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 13 133 F.3d 1240, 1241 (9th Cir. 1998). 14 States Supreme Court reiterated the rule as follows: 15 16 17 18 19 20 21 22 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. 23 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule 24 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 25 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 26 Cir. 2001), stating: 27 28 Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims 6 1 2 3 4 5 6 7 8 9 10 11 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. 12 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 13 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 14 2001). 15 Where none of a petitioner’s claims has been presented to 16 the highest state court as required by the exhaustion doctrine, 17 the Court must dismiss the petition. Raspberry v. Garcia, 448 18 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 19 481 (9th Cir. 2001). Further, where some claims are exhausted 20 and others are not (i.e., a “mixed” petition), the Court must 21 dismiss the petition without prejudice to give Petitioner an 22 opportunity to exhaust the claims if he can do so. Rose, 455 23 U.S. at 510, 521-22; Calderon v. United States Dist. Court 24 (Gordon), 107 F.3d 756, 760 (9th Cir. 1997), en banc, cert. 25 denied, 118 S.Ct. 265 (1997); Greenawalt v. Stewart, 105 F.3d 26 1268, 1273 (9th Cir. 1997), cert. denied, 117 S.Ct. 1794 (1997). 27 However, the Court must give a petitioner an opportunity to amend 28 7 1 a mixed petition to delete the unexhausted claims and permit 2 review of properly exhausted claims. 3 520; Calderon v. United States Dist. Ct. (Taylor), 134 F.3d 981, 4 986 (9th Cir. 1998), cert. denied, 525 U.S. 920 (1998); James v. 5 Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). 6 C. 7 Rose v. Lundy, 455 U.S. at Analysis The instant petition is a mixed petition containing 8 exhausted and unexhausted claims. 9 petition without prejudice unless Petitioner withdraws the The Court must dismiss the 10 unexhausted claims and proceeds with the exhausted claims in lieu 11 of suffering dismissal. 12 IV. 13 Accordingly, it is ORDERED that: 14 1) Petitioner’s motion for leave to amend the petition to Disposition 15 name M. D. Biter, Warden, as Respondent in this matter is 16 GRANTED; and 17 18 2) The Clerk of Court is DIRECTED to change the name of Respondent to “M. D. Biter, Warden”; and 19 20 3) The order to show cause that issued on April 23, 2012, is DISCHARGED; and 21 4) Petitioner is GRANTED thirty (30) days from the date of 22 service of this order to file a motion to withdraw the 23 unexhausted claims. 24 motion, the Court will assume Petitioner desires to return to 25 /// 26 /// 27 /// In the event Petitioner does not file such a 28 8 1 state court to exhaust the unexhausted claims and will therefore 2 dismiss the petition without prejudice.1 3 4 5 6 IT IS SO ORDERED. 7 Dated: ie14hj November 6, 2012 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1 Petitioner is informed 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). Petitioner is further informed that the Supreme Court has held in pertinent part: 22 23 24 25 26 27 28 [I]n the habeas corpus context it would be appropriate for an order dismissing a mixed petition to instruct an applicant that upon his return to federal court he is to bring only exhausted claims. See Fed. Rules Civ. Proc. 41(a) and (b). Once the petitioner is made aware of the exhaustion requirement, no reason exists for him not to exhaust all potential claims before returning to federal court. The failure to comply with an order of the court is grounds for dismissal with prejudice. Fed. Rules Civ. Proc. 41(b). Slack v. McDaniel, 529 U.S. 473, 489 (2000). Therefore, Petitioner is forewarned that in the event he returns to federal court and files a mixed petition of exhausted and unexhausted claims, the petition may be dismissed with prejudice. 9
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