(HC) Patterson v. On Habeas Corpus, No. 1:2014cv01400 - Document 11 (E.D. Cal. 2014)
Court Description: ORDER DISCHARGING 6 Order to Show Cause; ORDER DENYING Petitioner's 10 Motion for a Stay; ORDER DISMISSING the Petition for Writ of Habeas Corpus Without Prejudice; ORDER DECLINING to Issue a Certificate of Appealability and DIRECTING the Clerk to Close the Case, signed by Magistrate Judge Barbara A. McAuliffe on 11/3/14. CASE CLOSED. (Marrujo, C)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 VESTER L. PATTERSON, Case No. 1:14-cv-01400-BAM-HC 12 ORDER DISCHARGING ORDER TO SHOW CAUSE (DOC. 6) Petitioner, 13 14 15 ORDER DENYING PETITIONER’S MOTION FOR A STAY (DOC. 10) v. ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE (DOC. 1) 16 17 ON HABEAS CORPUS, 18 Respondent. ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DIRECTING THE CLERK TO CLOSE THE CASE 19 20 Petitioner is a state prisoner proceeding pro se and in forma 21 pauperis with a petition for writ of habeas corpus pursuant to 28 22 U.S.C. § 2254. Pursuant to 28 U.S.C. 636(c)(1), Petitioner has 23 consented to the jurisdiction of the United States Magistrate Judge 24 to conduct all further proceedings in the case, including the entry 25 of final judgment, by manifesting his consent in a signed writing 26 filed by Petitioner on October 2, 2014. Pending before the Court 27 are 1) the petition, which was filed on September 8, 2014; 2) the 28 Court’s order of September 25, 2014, directing Petitioner to show 1 1 cause why the petition should not be dismissed for failure to 1 2 exhaust state court remedies; and 3) Petitioner’s motion for a stay 3 of the proceedings on the instant petition so that he may exhaust 4 state court remedies, which was filed on October 29, 2014. 5 I. Screening the Petition 6 Rule 4 of the Rules Governing § 2254 Cases in the United States 7 District Courts (Habeas Rules) requires the Court to make a 8 preliminary review of each petition for writ of habeas corpus. The 9 Court must summarily dismiss a petition "[i]f it plainly appears 10 from the petition and any attached exhibits that the petitioner is 11 not entitled to relief in the district court....” Habeas Rule 4; 12 O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also 13 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 14 2(c) requires that a petition 1) specify all grounds of relief 15 available to the Petitioner; 2) state the facts supporting each 16 ground; and 3) state the relief requested. Notice pleading is not 17 sufficient; rather, the petition must state facts that point to a 18 real possibility of constitutional error. Rule 4, Advisory 19 Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 F.2d at 420 20 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). 21 Allegations in a petition that are vague, conclusory, or palpably 22 incredible are subject to summary dismissal. Hendricks v. Vasquez, 23 908 F.2d at 491. Further, the Court may dismiss a petition for writ of habeas 24 25 corpus either on its own motion under Habeas Rule 4, pursuant to the 26 respondent's motion to dismiss, or after an answer to the petition 27 28 1 Because Petitioner responded to the order to show cause, the order will be discharged. 2 1 has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 2 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 3 2001). 4 A petition for habeas corpus should not be dismissed without 5 leave to amend unless it appears that no tenable claim for relief 6 can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 7 13, 14 (9th Cir. 1971). 8 Here, Petitioner challenges the calculation of his release date 9 made by the California Department of Corrections and Rehabilitation 10 (CDCR) as being in excess of his sentence and a violation of the 11 Eighth and Fourteenth Amendments. Petitioner describes the process 12 of exhausting state administrative remedies within the prison. 13 (Pet., doc. 1, 4-5.) However, in the petition, Petitioner does not 14 document, specifically describe, or even mention any proceedings in 15 the state courts in which he exhausted his claims. In Petitioner’s 16 response to the order to show cause, which was filed on October 9, 17 2014, Petitioner again mentions his resort to administrative 18 remedies, but he does not allege or document his having received a 19 ruling on his claim or claims from the California Supreme Court. 20 II. Failure to Exhaust State Court Remedies 21 A petitioner who is in state custody and wishes to challenge 22 collaterally a conviction by a petition for writ of habeas corpus 23 must exhaust state judicial remedies. 28 U.S.C. ' 2254(b)(1). The 24 exhaustion doctrine is based on comity to the state court and gives 25 the state court the initial opportunity to correct the state's 26 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 27 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. 28 Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988). 3 1 A petitioner can satisfy the exhaustion requirement by 2 providing the highest state court with the necessary jurisdiction a 3 full and fair opportunity to consider each claim before presenting 4 it to the federal court, and demonstrating that no state remedy 5 remains available. Picard v. Connor, 404 U.S. 270, 275-76 (1971); 6 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court 7 will find that the highest state court was given a full and fair 8 opportunity to hear a claim if the petitioner has presented the 9 highest state court with the claim's factual and legal basis. 10 Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. 11 Tamayo-Reyes, 504 U.S. 1, 9-10 (1992), superceded by statute as 12 stated in Williams v. Taylor, 529 U.S. 362 (2000) (factual basis). 13 Additionally, the petitioner must have specifically told the 14 state court that he was raising a federal constitutional claim. 15 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 16 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. 17 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 18 1240, 1241 (9th Cir. 1998). In Duncan, the United States Supreme 19 Court reiterated the rule as follows: 20 21 22 23 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 4 1 court. 2 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule 3 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), 4 as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 5 2001), stating: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 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 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. 21 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended 22 by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001). 23 Where none of a petitioner=s claims has been presented to the 24 highest state court as required by the exhaustion doctrine, the 25 Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 26 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th 27 Cir. 2001). The authority of a court to hold a mixed petition in 28 abeyance pending exhaustion of the unexhausted claims has not been 5 1 extended to petitions that contain no exhausted claims. Raspberry, 2 448 F.3d at 1154. 3 Here, Petitioner has not shown that he has exhausted his state 4 court remedies as to any of the claims stated in the petition before 5 the Court. Although non-exhaustion of state court remedies has been 6 viewed as an affirmative defense, it is established that it is the 7 petitioner’s burden to prove that state judicial remedies were 8 properly exhausted. 28 U.S.C. § 2254(b)(1)(A); Darr v. Burford, 9 339 U.S. 200, 218-19 (1950), overruled in part on other grounds in 10 Fay v. Noia, 372 U.S. 391 (1963); Cartwright v. Cupp, 650 F.2d 1103, 11 1104 (9th Cir. 1981). If available state court remedies have not 12 been exhausted as to all claims, a district court must dismiss a 13 petition. Rose v. Lundy, 455 U.S. 509, 515-16 (1982). Petitioner 14 did not allege in the petition or in his response to the order to 15 show cause that he had obtained a decision from the California 16 Supreme Court on his claims. Petitioner has failed to meet his 17 burden to establish exhaustion of state court remedies. 18 III. Motion for a Stay 19 On October 29, 2014, Petitioner filed a motion for a stay in 20 which he stated that on October 22, 2014, an issue was sent to the 21 California Supreme Court. (Doc. 10, 2.) However, Petitioner has 22 not alleged that the California Supreme Court has ruled on his 23 claims. 24 Further, although Petitioner requests a stay, he does not 25 contest the fact that all of his claims are unexhausted. 26 Petitioner has not provided any reasonable excuse for his 27 failure to exhaust state court remedies. Cf. Rhines v. Weber, 544 28 U.S. 269, 276 (2005); Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th 6 1 Cir. 2008), cert. den. 129 S.Ct. 2771 (2009); Blake v. Baker, 745 2 F.3d 977 (9th Cir. 2014), cert. den. Baker v. Blake, 2014 WL 3 2646896, 83 USLW 3019, 3170, 3194 (Oct 06, 2014). Petitioner thus 4 states no good cause for a stay; he simply states that he believes 5 that he will be prejudiced by staying in custody beyond what he 6 believes is his release date. However, Petitioner has not shown any 7 reason why he should not first be required to present his claim to 8 the state courts, which are a competent and available forum for 9 Petitioner’s claim regarding the calculation of his release date. Accordingly, Petitioner’s motion for a stay will be denied, and 10 11 the petition will be dismissed without prejudice 2 for failure to 12 exhaust state court remedies as to any of the claims in the 13 petition. 14 IV. Certificate of Appealability 15 Unless a circuit justice or judge issues a certificate of 16 17 2 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. 7 1 appealability, an appeal may not be taken to the Court of Appeals 2 from the final order in a habeas proceeding in which the detention 3 complained of arises out of process issued by a state court. 28 4 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 5 (2003). A district court must issue or deny a certificate of 6 appealability when it enters a final order adverse to the applicant. 7 Rule 11(a) of the Rules Governing Section 2254 Cases. 8 A certificate of appealability may issue only if the applicant 9 makes a substantial showing of the denial of a constitutional right. 10 ' 2253(c)(2). Under this standard, a petitioner must show that 11 reasonable jurists could debate whether the petition should have 12 been resolved in a different manner or that the issues presented 13 were adequate to deserve encouragement to proceed further. Miller- 14 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 15 473, 484 (2000)). A certificate should issue if the Petitioner 16 shows that jurists of reason would find it debatable whether: (1) 17 the petition states a valid claim of the denial of a constitutional 18 right, and (2) the district court was correct in any procedural 19 ruling. 20 Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). In determining this issue, a court conducts an overview of the 21 claims in the habeas petition, generally assesses their merits, and 22 determines whether the resolution was debatable among jurists of 23 reason or wrong. Id. An applicant must show more than an absence 24 of frivolity or the existence of mere good faith; however, the 25 applicant need not show that the appeal will succeed. Miller-El v. 26 Cockrell, 537 U.S. at 338. 27 Here, it does not appear that reasonable jurists could debate 28 whether the petition should have been resolved in a different 8 1 manner. Petitioner has not made a substantial showing of the denial 2 of a constitutional right. Accordingly, the Court will decline to issue a certificate of 3 4 appealability. 5 V. Disposition 6 In accordance with the foregoing analysis, it is ORDERED that: 7 1) The order to show cause that issued on September 25, 2014, 8 is DISCHARGED; and 9 2) Petitioner’s motion for a stay is DENIED; and 10 3) The petition is DISMISSED without prejudice for 11 Petitioner’s failure to exhaust state court remedies; and 4) The Court DECLINES to issue a certificate of appealability; 5) 12 The Clerk is DIRECTED to close the case because dismissal 13 and 14 15 will terminate the proceeding in its entirety. 16 17 IT IS SO ORDERED. 18 19 Dated: /s/ Barbara November 3, 2014 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 9
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