(HC) Frias v. Fresno County, No. 1:2015cv01620 - Document 9 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus be DISMISSED for Lack of Exhaustion re 1 Petition for Writ of Habeas Corpus ;referred to Judge O'Neill,signed by Magistrate Judge Jennifer L. Thurston on 11/12/2015. (21-Day Deadline) (Martin-Gill, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GILBERTO ENRIQUE FRIAS, 12 13 14 15 Petitioner, v. FRESNO COUNTY, Respondent. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:15-cv-01620-JLT FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR LACK OF EXHAUSTION (Doc. 1) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE TO CASE This action was filed on October 26, 2015. (Doc. 1). After a preliminary review of the petition 19 it appeared to the Court that none of the claims have been exhausted in state court. Thus, the Court 20 ordered Petitioner to show cause why it should not be dismissed as completely unexhausted. (Doc. 5). 21 In his response, Petitioner argues that the Superior Court of California has denied his habeas petition 22 which, contends, is sufficient efforts toward exhaustion. (Doc. 7). The Court disagrees and 23 recommends the petition be DISMISSED. 24 DISCUSSION 25 A. Preliminary Review of Petition. 26 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 27 if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is 28 not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The 1 1 Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas 2 corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after 3 an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001). 4 B. Exhaustion. 5 A state prisoner who wishes to collaterally attack his criminal conviction in federal court by a 6 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 7 exhaustion doctrine is based on comity to the state court and gives the state court the initial 8 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 9 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th 10 11 Cir. 1988). A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 12 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 13 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 14 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full 15 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 16 claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 17 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 18 Additionally, the petitioner must have specifically told the state court that he was raising a 19 federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th 20 Cir. 2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); 21 Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). In Duncan, the United States Supreme Court 22 reiterated the rule as follows: 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 court. Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 2 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); . . . . 1 2 3 4 5 6 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 8 9 10 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons v. Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001). 11 Where none of a petitioner’s claims has been presented to the highest state court as required by 12 the exhaustion doctrine, the Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 13 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The authority of a court to hold a 14 mixed petition in abeyance pending exhaustion of the unexhausted claims has not been extended to 15 petitions that contain no exhausted claims. Raspberry, 448 F.3d at 1154. 16 Here, Petitioner has alleged that he appeared in the Fresno County Superior Court on 17 September 8, 2015 for a hearing on a violation of parole, that Petitioner pleaded no contest to having 18 violated his parole, and was sentenced to an additional two years in prison. (Doc. 1, p. 1). Petitioner 19 alleges that he did not appeal the parole violation and has not pursued any other remedies in the state 20 courts related to this event. In his response to the Order to Show Cause, Petitioner stated that he had 21 filed a state habeas petition on October 22, 2015 in the Fresno County Superior Court, but that the 22 petition was denied. (Doc. 7, p. 1). Petitioner then argues that the Superior Court denial “left me with 23 no other resort but Federal Court to remedy this situation.” (Id.). Petitioner is mistaken, however, 24 that presenting his issues to the Superior Court is sufficient for exhaustion. As mentioned, he must 25 first present his claims to the California Supreme Court before he can raise them in this Court. Since 26 he has not done so, the Court has no alternative but to recommend the petition be dismissed. The 27 Court cannot entertain a petition that is entirely unexhausted. Raspberry, 448 F.3d at 1154. 28 /// 3 ORDER 1 2 3 For the foregoing reasons, the Court HEREBY DIRECTS the Clerk of the Court to assign a United States District Judge to this case. 4 RECOMMENDATION 5 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 6 7 DISMISSED for lack of exhaustion. This Findings and Recommendation is submitted to the United States District Court Judge 8 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 9 Rules of Practice for the United States District Court, Eastern District of California. Within 21 days 10 after being served with a copy of this Findings and Recommendation, any party may file written 11 objections with the Court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be 13 served and filed within 10 days (plus three days if served by mail) after service of the Objections. The 14 Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties 15 are advised that failure to file objections within the specified time may waive the right to appeal the 16 Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 19 20 IT IS SO ORDERED. Dated: November 12, 2015 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 4
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