(HC) Burns v. MacDonald, No. 1:2012cv01820 - Document 8 (E.D. Cal. 2012)
Court Description: ORDER Dismissing Petition for Writ of Habeas Corpus; ORDER Denying Motion for Stay; ORDER Directing Clerk of Court to Enter Judgment and Close Case; ORDER Declining Issuance of Certificate of Appealability, signed by Magistrate Judge Gary S. Austin on 12/13/12. CASE CLOSED. (Gonzalez, R)
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(HC) Burns v. MacDonald Doc. 8 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 KENNETH JEFFERSON BURNS, 1:12-CV-01820 GSA HC 13 Petitioner, ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS 14 15 v. ORDER DENYING MOTION FOR STAY 16 ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE JAMES MACDONALD, Warden, 17 Respondent. 18 / ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. He has consented to the exercise of Magistrate Judge jurisdiction 21 pursuant to 28 U.S.C. § 636(c). 22 On October 4, 2012, Petitioner filed the instant petition for writ of habeas corpus in the 23 Sacramento Division of the United States District Court for the Eastern District of California. By 24 order of the Court dated November 7, 2012, the petition was transferred to the Fresno Division and 25 received in this Court. 26 According to the petition, on July 20, 2009, Petitioner was convicted of multiple sex crimes. 27 He was sentenced to serve a total determinate term of 11.4 years in state prison. Petitioner states he 28 U .S. D istrict C ourt E. D . C alifornia cd 1 Dockets.Justia.com 1 appealed the decision to the California Court of Appeals. He states the appellate court denied the 2 petition in September of 2011. He states he then filed a petition in the California Supreme Court and 3 the petition was denied on November 2, 2011. 4 5 DISCUSSION I. Preliminary Review of Petition 6 Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part: 7 If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. 8 9 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 10 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 11 dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th 12 Cir.2001). 13 II. Exhaustion of State Remedies 14 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 15 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 16 exhaustion doctrine is based on comity to the state court and gives the state court the initial 17 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 18 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 19 1163 (9th Cir. 1988). 20 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 21 full and fair opportunity to consider each claim before presenting it to the federal court. Picard v. 22 Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal 23 court will find that the highest state court was given a full and fair opportunity to hear a claim if the 24 petitioner has presented the highest state court with the claim's factual and legal basis. Duncan v. 25 Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1 (1992) (factual 26 basis). 27 28 Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 U .S. D istrict C ourt E. D . C alifornia cd 2 1 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999); 2 Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In Duncan, the United States Supreme Court 3 reiterated the rule as follows: 4 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. 5 6 7 8 9 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 10 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. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . . 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. 11 12 13 14 15 16 17 18 19 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added). 20 In this case, Petitioner presents the following claim for relief: “Insufficient evidence to 21 support verdicts, clearly Count 2 and Count 7 are proved to be unfounded and my rights denied for 22 due process. The victim’s own testimony during both trials proved these charges false.” (Pet. at 4.) 23 He concedes he did not present this claim to the California Supreme Court. Therefore, the instant 24 petition is unexhausted. Nevertheless, Petitioner asks for a protective stay of the petition pending 25 exhaustion of state remedies. 26 A district court has discretion to stay a petition which it may validly consider on the merits. 27 Rhines v. Weber, 544 U.S. 269, 277 (2005); Calderon v. United States Dist. Court (Taylor), 134 F.3d 28 981, 987-88 (9th Cir. 1998); Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir.), cert. denied, 519 U .S. D istrict C ourt E. D . C alifornia cd 3 1 U.S. 1102 (1997). In seeking a stay of the instant petition, Petitioner relies primarily on dicta in Pace 2 v. DiGuglielmo, 544 U.S. 408 (2005), discussing the predicament a prisoner could face if he litigated 3 in the state court for years only to find out that the petition was not “properly filed” and therefore not 4 entitled to tolling; the Court stated a “prisoner seeking state postconviction relief might avoid this 5 predicament, however, by filing a ‘protective’ petition in federal court and asking the federal court to 6 stay and abey the federal habeas proceedings until state remedies are exhausted.” Id. at 416, citing 7 Rhines, 544 U.S. at 278. However, the Court in Pace went on to state that “[a] petitioner's 8 reasonable confusion about whether a state filing would be timely will ordinarily constitute ‘good 9 cause’ for him to file in federal court. Id. (“[I]f the petitioner had good cause for his failure to 10 exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the 11 petitioner engaged in intentionally dilatory tactics,” then the district court likely “should stay, rather 12 than dismiss, the mixed petition”) (emphasis added). 13 The protective stays referred to by the Court in Rhines involved a “mixed” petition, meaning 14 that the petition included both exhausted and unexhausted claims. The Court discussed the merits of 15 granting a stay to allow petitioner to return to state court to exhaust those claims that remained 16 unexhausted rather than denying without prejudice a petition which included exhausted claims. 17 Rhines, 544 U.S. at 276-277; Pace, 544 U.S. at 415-16. The basis of that Court's ruling was premised 18 on the fact that the petition was “mixed”, not completely unexhausted. 19 Here, the Court is not presented with a “mixed” petition. Petitioner has not exhausted the 20 claim he now raises in this petition. Unlike the situation when the Court is presented with a mixed 21 petition having jurisdiction over the exhausted claims, the Court must dismiss without prejudice a 22 petition that contains only unexhausted claims. 28 U.S.C. § 2254(b)(1); Rose v. Lundy, 455 U.S. at 23 521-22. Therefore, this is not a situation covered by the “protective stay and abeyance” referenced in 24 Rhines. The Court declines to extend the grant of a protective stay and abeyance to a case such as 25 this where the petition contains only unexhausted claims, over which the Court has no jurisdiction. 26 Accordingly, the instant petition for writ of habeas corpus will be DISMISSED, without prejudice to 27 refiling after Petitioner has exhausted the state court remedies. 28 Although the Court expresses no opinion as to the timeliness of any future petition, the Court U .S. D istrict C ourt E. D . C alifornia cd 4 1 notes that AEDPA imposes a one year period of limitation on petitioners seeking to file a federal 2 petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Title 28 U.S.C. § 2244(d)(2) states that 3 the “time during which a properly filed application for State post-conviction or other collateral 4 review with respect to the pertinent judgment or claim is pending shall not be counted toward” the 5 one year limitation period. 28 U.S.C. § 2244(d)(2). In Carey v. Saffold, the Supreme Court held the 6 statute of limitations is tolled where a petitioner is properly pursuing post-conviction relief, and the 7 period is tolled during the intervals between one state court's disposition of a habeas petition and the 8 filing of a habeas petition at the next level of the state court system. 536 U.S. 214, 214-15 (2002); 9 see also Nino v. Galaza,183 F.3d 1003, 1006 (9th Cir.1999), cert. denied, 529 U.S. 1104 (2000). 10 CERTIFICATE OF APPEALABILITY 11 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 12 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller- 13 El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue 14 a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 15 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 16 17 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 18 19 (c) 20 21 (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from– (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 22 23 (B) the final order in a proceeding under section 2255. 24 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. 25 26 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 27 If a court denies a petitioner’s petition, the court may only issue a certificate of appealability 28 “if jurists of reason could disagree with the district court’s resolution of his constitutional claims or U .S. D istrict C ourt E. D . C alifornia cd 5 1 that jurists could conclude the issues presented are adequate to deserve encouragement to proceed 2 further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the 3 petitioner is not required to prove the merits of his case, he must demonstrate “something more than 4 the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 5 338. 6 In the present case, the Court finds that reasonable jurists would not find the Court’s 7 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or 8 deserving of encouragement to proceed further. Petitioner has not made the required substantial 9 showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a 10 certificate of appealability. 11 ORDER 12 Accordingly, IT IS HEREBY ORDERED: 13 1) The petition for writ of habeas corpus is DISMISSED without prejudice1 for failure to 14 exhaust state remedies; 15 2) Petitioner’s motion for stay of the petition is DENIED; 16 3) The Clerk of Court is DIRECTED to enter judgment and close the case; and 17 4) The Court DECLINES to issue a certificate of appealability. 18 19 20 IT IS SO ORDERED. Dated: 6i0kij December 13, 2012 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 1 A dismissal for failure to exhaust is not a dismissal on the merits, and Petitioner will not be barred from returning to federal court after Petitioner exhausts available state remedies by 28 U.S.C. § 2244 (b)’s prohibition on filing second petitions. See In re Turner, 101 F.3d 1323 (9th Cir. 1996). However, the Supreme Court has held that: 24 [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). 25 26 27 28 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. U .S. D istrict C ourt E. D . C alifornia cd 6
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