(HC) Green v. On Habeas Corpus, No. 1:2018cv00223 - Document 7 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the Petition (Doc. 1 ) be DISMISSED Without Prejudice for Failure to Exhaust State Court Remedies signed by Magistrate Judge Michael J. Seng on 3/26/2018. Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SARON GREEN, 10 Petitioner, 11 12 v. ON HABEAS CORPUS, 13 Case No. 1:18-cv-00223-DAD-MJS (HC) FINDINGS AND RECOMMENDATION TO DISMISS PETITION BASED ON PETITIONER’S FAILURE TO EXHAUST STATE COURT REMEDIES Respondent. 14 FOURTEEN DAY DEADLINE 15 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 18 19 20 21 22 23 24 25 26 27 28 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the May 15, 2013 judgement of the Kern County Superior Court. (ECF No. 1 at 1.) He raises four grounds for relief and states that none of the grounds have been presented to the California Supreme Court. It appearing that Petitioner had not exhausted his state court remedies with respect to the claims presented here, the undersigned ordered Petitioner to show cause why the action should not be dismissed. (ECF No. 4.) Petitioner did not respond and the time for doing so has passed. Accordingly, the undersigned will recommend dismissal of the petition. 1 I. Discussion 2 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a 3 preliminary review of each petition for writ of habeas corpus. The Court must dismiss a 4 petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to 5 relief." Rule 4 of the Rules Governing § 2254 Cases; Hendricks v. Vasquez, 908 F.2d 6 490 (9th Cir. 1990). Otherwise, the Court will order Respondent to respond to the 7 petition. Rule 5 of the Rules Governing § 2254 Cases. 8 A petitioner who is in state custody and wishes to collaterally challenge his 9 conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 10 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court 11 and gives the state court the initial opportunity to correct the state's alleged constitutional 12 deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 13 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988). 14 A petitioner can satisfy the exhaustion requirement by providing the highest state 15 court with a full and fair opportunity to consider each claim before presenting it to the 16 federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 17 270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will 18 find that the highest state court was given a full and fair opportunity to hear a claim if the 19 petitioner has presented the highest state court with the claim's factual and legal basis. 20 Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9 (1992) 21 (factual basis). 22 Additionally, the petitioner must have specifically told the state court that he was 23 raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 24 232 F.3d 666, 669 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 25 F.3d 1098, 1106 (9th Cir.1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In 26 Duncan, the United States Supreme Court reiterated the rule as follows: 27 28 In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners "fairly present" 2 1 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 3 4 5 6 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 7 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); . . . . 8 9 10 11 12 13 14 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. 15 16 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000). 17 18 19 20 21 22 23 24 25 26 27 Upon review of the instant petition for writ of habeas corpus, it appears that Petitioner has not presented his claims to the highest state court, the California Supreme Court. Petitioner was afforded the opportunity to provide additional information in this regard but failed to do so. Because the claims have not been presented to the state’s highest court, the Court is unable to proceed to the merits of the petition. 28 U.S.C. § 2254(b)(1). II. Conclusion and Recommendation It is HEREBY RECOMMENDED that the petition be dismissed without prejudice for failure to exhaust state court remedies. The findings and recommendation are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 28 3 1 fourteen (14) days after being served with the findings and recommendation, any party 2 may file written objections with the Court and serve a copy on all parties. Such a 3 document should be captioned “Objections to Magistrate Judge’s Findings and 4 Recommendation.” Any reply to the objections shall be served and filed within fourteen 5 (14) days after service of the objections. The parties are advised that failure to file 6 objections within the specified time may result in the waiver of rights on appeal. 7 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 8 F.2d 1391, 1394 (9th Cir. 1991)). 9 10 11 IT IS SO ORDERED. Dated: March 26, 2018 /s/ 12 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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