(HC) Mooney v. County of Kern, No. 1:2013cv01419 - Document 6 (E.D. Cal. 2013)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition Without Prejudice for Failure to Exhaust State Court Remedies, Decline to Issue a Certificate of Appealability, and Direct the Clerk to Close Case, signed by Magistrate Judge Sheila K. Oberto on 11/13/13. Referred to Judge Ishii. Thirty-Day Objections Deadline. (Gonzalez, R)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 DAVID T. MOONEY, Case No. 1:13-cv-01419-AWI-SKO-HC 12 FINDINGS AND RECOMMENDATIONS 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 CASE 13 Petitioner, v. 14 15 COUNTY OF KERN, 16 Respondent. OBJECTIONS DEADLINE: THIRTY (30) DAYS 17 18 19 Petitioner is a state prisoner proceeding pro se and in forma 20 pauperis with a petition for writ of habeas corpus pursuant to 28 21 U.S.C. § 2254. The matter has been referred to the Magistrate Judge 22 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 23 Pending before the Court is the petition, which was filed on 24 September 5, 2013. 25 I. 26 Rule 4 of the Rules Governing § 2254 Cases in the United States Screening the Petition 27 District Courts (Habeas Rules) requires the Court to make a 28 preliminary review of each petition for writ of habeas corpus. 1 The 1 Court must summarily dismiss a petition "[i]f it plainly appears 2 from the petition and any attached exhibits that the petitioner is 3 not entitled to relief in the district court....” Habeas Rule 4; 4 O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also 5 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 6 2(c) requires that a petition 1) specify all grounds of relief 7 available to the Petitioner; 2) state the facts supporting each 8 ground; and 3) state the relief requested. Notice pleading is not 9 sufficient; the petition must state facts that point to a real 10 possibility of constitutional error. Rule 4, Advisory Committee 11 Notes, 1976 Adoption; O’Bremski v. Maass, 915 F.2d at 420 (quoting 12 Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Allegations in 13 a petition that are vague, conclusory, or palpably incredible are 14 subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 15 491. 16 The Court may dismiss a petition for writ of habeas corpus 17 either on its own motion under Habeas Rule 4, pursuant to the 18 respondent's motion to dismiss, or after an answer to the petition 19 has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 20 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 21 2001). A petition for habeas corpus, however, should not be 22 dismissed without leave to amend unless it appears that no tenable 23 claim for relief can be pleaded were such leave granted. Jarvis v. 24 Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 25 Petitioner is an inmate of the Ironwood State Prison (ISP) who 26 alleges he is serving a sentence of one year and four months for a 27 violation of Cal. Pen. Code § 4573.8 imposed in the Superior Court 28 of the State of California, County of Kern, pursuant to his plea of 2 1 nolo contendere entered as part of a plea agreement. Petitioner 2 challenges his sentence and alleges the following claims in the 3 petition: 1) records show that Petitioner did not agree to a second 4 strike; and 2) Petitioner is serving a longer sentence than he 5 agreed to pursuant to the plea agreement. (Pet., doc. 1, 4.) 6 II. Failure to Exhaust State Court Remedies 7 A petitioner who is in state custody and wishes to challenge 8 collaterally a conviction by a petition for writ of habeas corpus 9 must exhaust state judicial remedies. 28 U.S.C. ' 2254(b)(1). The 10 exhaustion doctrine is based on comity to the state court and gives 11 the state court the initial opportunity to correct the state's 12 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 13 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. 14 Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988). 15 A petitioner can satisfy the exhaustion requirement by 16 providing the highest state court with the necessary jurisdiction a 17 full and fair opportunity to consider each claim before presenting 18 it to the federal court, and demonstrating that no state remedy 19 remains available. Picard v. Connor, 404 U.S. 270, 275-76 (1971); 20 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court 21 will find that the highest state court was given a full and fair 22 opportunity to hear a claim if the petitioner has presented the 23 highest state court with the claim's factual and legal basis. 24 Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. 25 Tamayo-Reyes, 504 U.S. 1, 9-10 (1992), superceded by statute as 26 stated in Williams v. Taylor, 529 U.S. 362 (2000) (factual basis). 27 Additionally, the petitioner must have specifically informed 28 the state court that he was raising a federal constitutional claim. 3 1 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 2 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. 3 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 4 1240, 1241 (9th Cir. 1998). In Duncan, the United States Supreme 5 Court reiterated the rule as follows: 6 7 8 9 10 11 12 13 14 15 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. 16 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule 17 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), 18 as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 19 2001), stating: 20 21 22 23 24 25 26 27 28 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 4 1 2 3 4 5 6 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. 7 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended 8 by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001). 9 Where none of a petitioner=s claims has been presented to the 10 highest state court as required by the exhaustion doctrine, the 11 Court must dismiss the petition. Rasberry v. Garcia, 448 F.3d 1150, 12 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 13 2001). The authority of a court to hold a mixed petition in 14 abeyance pending exhaustion of the unexhausted claims has not been 15 extended to petitions that contain no exhausted claims. Rasberry, 16 448 F.3d at 1154. 17 Petitioner states that he did not file an appeal from the 18 judgment of conviction, and he has not filed any applications or 19 petitions in any other courts. (Pet., doc. 1 at 2-3, 5.) Thus, he 20 admits he has not exhausted state court remedies as to any of the 21 claims stated in the petition before the Court. Although non- 22 exhaustion of state court remedies has been viewed as an affirmative 23 defense, it is the petitioner’s burden to prove that state judicial 24 remedies were properly exhausted. 28 U.S.C. § 2254(b)(1)(A); Darr 25 v. Burford, 339 U.S. 200, 218-19 (1950), overruled in part on other 26 grounds in Fay v. Noia, 372 U.S. 391 (1963); Cartwright v. Cupp, 650 27 F.2d 1103, 1104 (9th Cir. 1981). If available state court remedies 28 5 1 have not been exhausted as to all claims, a district court must 2 dismiss a petition. Rose v. Lundy, 455 U.S. 509, 515-16 (1982). Here, Petitioner’s petition is premature because he admits he 3 4 has not submitted his claim or claims to the California Supreme 5 Court for a ruling. Further, a search of the official website of 6 the California Supreme Court reflects no information to show that 7 Petitioner has presented his claims to the California Supreme Court. Based on the foregoing, Petitioner has failed to meet its 8 9 burden of establishing exhaustion of state court remedies, and the 10 petition should be dismissed without prejudice for failure to exhaust 11 state court remedies. 1 12 III. Certificate of Appealability 13 Unless a circuit justice or judge issues a certificate of 14 appealability, an appeal may not be taken to the Court of Appeals 15 from the final order in a habeas proceeding in which the detention 16 17 1 A dismissal for failure to exhaust is not a dismissal on the merits, and 18 Petitioner will not be barred by the prohibition against filing second habeas petitions set forth in 28 U.S.C. § 2244(b) from returning to federal court after See, In re Turner, 101 F.3d 1323 (9th Cir. 1996). However, the Supreme Court has held as follows: 19 Petitioner exhausts available state remedies. 20 21 22 23 24 25 26 [I]n the habeas corpus context is 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 27 court and files a mixed petition of both exhausted and unexhausted claims, the 28 petition may be dismissed with prejudice. 6 1 complained of arises out of process issued by a state court. 28 2 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 3 (2003). A certificate of appealability may issue only if the 4 applicant makes a substantial showing of the denial of a 5 constitutional right. 6 ' 2253(c)(2). Under this standard, a petitioner must show that reasonable 7 jurists could debate whether the petition should have been resolved 8 in a different manner or that the issues presented were adequate to 9 deserve encouragement to proceed further. Miller-El v. Cockrell, 10 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 11 (2000)). A certificate should issue if the Petitioner shows that 12 jurists of reason would find it debatable whether: (1) the petition 13 states a valid claim of the denial of a constitutional right, or (2) 14 the district court was correct in any procedural ruling. 15 McDaniel, 529 U.S. 473, 483-84 (2000). Slack v. In determining this issue, a 16 court conducts an overview of the claims in the habeas petition, 17 generally assesses their merits, and determines whether the 18 resolution was debatable among jurists of reason or wrong. Id. An 19 applicant must show more than an absence of frivolity or the 20 existence of mere good faith; however, the applicant need not show 21 the appeal will succeed. 22 Miller-El v. Cockrell, 537 U.S. at 338. A district court must issue or deny a certificate of 23 appealability when it enters a final order adverse to the applicant. 24 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does 25 not appear that reasonable jurists could debate whether the petition 26 should have been resolved in a different manner. Petitioner has not 27 made a substantial showing of the denial of a constitutional right. 28 Accordingly, the Court should decline to issue a certificate of 7 1 appealability. 2 IV. Recommendations 3 Based on the foregoing, it is RECOMMENDED that: 4 1) The petition be DISMISSED without prejudice for 5 Petitioner’s failure to exhaust state court remedies; 2) The Court DECLINE to issue a certificate of appealability; 3) 6 The Clerk be DIRECTED to close the case because dismissal 7 and 8 9 will terminate the proceeding in its entirety. 10 These findings and recommendations are submitted to the United 11 States District Court Judge assigned to the case, pursuant to the 12 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local 13 Rules of Practice for the United States District Court, Eastern 14 District of California. Within thirty (30) days after being served 15 with a copy, any party may file written objections with the Court 16 and serve a copy on all parties. Such a document should be 17 captioned AObjections to Magistrate Judge=s Findings and 18 Recommendations.@ Replies to the objections shall be served and 19 filed within fourteen (14) days (plus three (3) days if served by 20 mail) after service of the objections. The Court will then review 21 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C). 22 The parties are advised that failure to file objections within the 23 specified time may waive the right to appeal the District Court=s 24 order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 26 IT IS SO ORDERED. 27 28 Dated: November 13, 2013 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 8
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