(HC) Smith v. Fresno County et al, No. 1:2014cv00792 - Document 12 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus (Doc. 1 ) be DISMISSED for Lack of Exhaustion signed by Magistrate Judge Jennifer L. Thurston on 7/9/2014. Referred to Judge O'Neill. Objections to F&R due within twenty-one (21) days. (Jessen, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 ) ) ) ) ) ) ) ) ) CLEVELAND SMITH, Petitioner, v. 14 FRESNO COUNTY, et al., 15 Respondent. Case No.: 1:14-cv-00792-JLT FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR LACK OF EXHAUSTION ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS 16 17 18 19 20 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. PROCEDURAL HISTORY The instant petition was filed on May 23, 2014. After a preliminary review of the petition 21 indicated that the petition contained claims that have not been exhausted in state court, the Court, on 22 May 29, 2014, issued an Order to Show Cause requiring Petitioner to file a response within thirty days 23 indicating whether or not his claims had been exhausted in state court. (Doc. 4). To date, Petitioner 24 has not filed a response to the Order to Show Cause, although Petitioner has filed several other 25 unrelated motions seeking relief from certain conditions of confinement. (Docs. 9 & 10). DISCUSSION 26 27 A. Preliminary Review of Petition. 28 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 1 1 if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is 2 not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The 3 Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas 4 corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after 5 an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001). 6 B. Exhaustion. 7 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 8 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 9 exhaustion doctrine is based on comity to the state and gives the state court the initial opportunity to 10 correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); 11 Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988). 12 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 13 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 14 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 15 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full 16 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 17 claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 18 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 19 Additionally, the petitioner must have specifically told the state court that he was raising a 20 federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th 21 Cir. 2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); 22 Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). In Duncan, the United States Supreme Court 23 reiterated the rule as follows: 24 25 26 27 28 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. 2 1 2 3 4 5 6 7 8 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 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. 9 10 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons v. 11 Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001). 12 Where none of a petitioner’s claims has been presented to the highest state court as required by 13 the exhaustion doctrine, the Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 14 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The authority of a court to hold a 15 mixed petition in abeyance pending exhaustion of the unexhausted claims has not been extended to 16 petitions that contain no exhausted claims. Raspberry, 448 F.3d at 1154. 17 Here, the petition itself alleges that Petitioner has not been convicted of any crime, but it 18 nevertheless being held unlawfully in the Fresno County Jail under circumstances that Petitioner 19 contends are unconstitutional. (Doc. 1, pp. 1-2). Petitioner alleges that he has filed two state habeas 20 petitions, both in the Superior Court of Fresno County, and has attached to the petition the orders of 21 the Superior Court denying his petitions. (Doc. 1, pp. 18-22). Under that section of the form petition 22 where a petitioner is asked whether he or she has brought his case to the highest state court, Petitioner 23 indicates “N/A” and states that his case should be “expeditable.” (Doc. 1, p. 3). When Petitioner was 24 afforded the opportunity to respond to the Order to Show Cause and explain either his reasons for not 25 exhausting his claims or clarifying that those claims were exhausted, Petitioner failed to respond to the 26 Court’s order. 27 28 From the foregoing, the Court concludes that Petitioner has not presented any of his claims to the California Supreme Court as required by the exhaustion doctrine. Because Petitioner has not 3 1 presented his claims for federal relief to the California Supreme Court, the Court must dismiss the 2 petition. See Calderon v. United States Dist. Court, 107 F.3d 756, 760 (9th Cir. 1997) (en banc); 3 Greenawalt v. Stewart, 105 F.3d 1268, 1273 (9th Cir. 1997). The Court cannot consider a petition that 4 is entirely unexhausted. Rose v. Lundy, 455 U.S. 509, 521-22 (1982); Calderon, 107 F.3d at 760.1 RECOMMENDATION 5 Accordingly, the Court HEREBY RECOMMENDS that the petition for writ of habeas corpus 6 7 (Doc. 1), be DISMISSED for lack of exhaustion. This Findings and Recommendation is submitted to the United States District Court Judge 8 9 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the 10 Local Rules of Practice for the United States District Court, Eastern District of California. 11 Within twenty-one (21) days after being served with a copy, any party may file written objections with 12 the court and serve a copy on all parties. Such a document should be captioned “Objections to 13 Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served and 14 filed within ten (10) court days (plus three days if served by mail) after service of the objections. The 15 Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The 16 parties are advised that failure to file objections within the specified time may waive the right to 17 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 IT IS SO ORDERED. 20 Dated: July 9, 2014 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 1 26 27 28 Despite Petitioner’s suggestion to the contrary, there is no authority for the proposition that this Court can consider Petitioner’s unexhausted petition merely because of the gravity of Petitioner’s claims or because the petition should be “expedited.” As discussed above, the purpose of the exhaustion requirement is to allow the state courts to address and, hopefully, resolve issues raised by state inmates without unnecessarily burdening the federal courts with such matters. In other words, this Court has no authority to disregard the exhaustion doctrine where none of Petitioner’s claims have been presented to the California Supreme Court. 4
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