(HC) Bone v. Kernan, No. 1:2018cv00665 - Document 15 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS that Respondent's 12 Motion to Dismiss Petition for Writ of Habeas Corpus be Granted for Failure to Exhaust, that Petition be Dismissed without Prejudice, and that the Court Decline to Issue a Certificate of Appealability signed by Magistrate Judge Jeremy D. Peterson on 6/25/2018. Referred to Judge Anthony W. Ishii. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONALD DOUGLAS BONE, Case No. 1:18-cv-00665-AWI-JDP 16 FINDINGS AND RECOMMENDATIONS THAT RESPONDENT’S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS BE GRANTED FOR FAILURE TO EXHAUST, THAT PETITION BE DISMISSED WITHOUT PREJUDICE, AND THAT THE COURT DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY 17 (Doc. No. 12) Petitioner, 12 v. 13 14 SCOTT KERNAN, 15 Respondent. Pro se petitioner Donald Douglas Bone is a state prisoner proceeding in forma pauperis 18 19 with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent Scott Kernan 20 moves to dismiss the petition. (Doc. No. 12.) The undersigned will recommend that the court 21 grant respondent’s motion to dismiss for petitioner’s failure to exhaust remedies in state court. 22 I. BACKGROUND 23 This habeas proceeding concerns petitioner’s claim that the California Department of 24 Corrections and Rehabilitation (“CDCR”) violated his due process rights when it denied him 25 early release. Petitioner had been scheduled to be released on April 24, 2018, a date that took into 26 account a 90-day Education Merit Credit that CDCR had awarded him under Cal. Code Regs. tit. 27 15, § 3043.5. (Doc. No. 1, at 11.) On April 17, 2018, one week before his scheduled release, 28 petitioner received a notice that CDCR had rescinded the Education Merit Credit and that his new 1 1 release date would be July 22, 2018. (Doc. No. 12, at 23.) Petitioner filed an institutional 2 grievance, appealing CDCR’s decision to rescind his Education Merit Credit. (Id. at 13-22.) On 3 June 12, 2018, C. Flores, an Associate Warden, partially granted petitioner’s appeal, 4 acknowledging that CDCR had inappropriately rescinded petitioner’s Education Merit Credit. 5 (Id. at 22.) Although Associate Warden Flores restored petitioner’s Education Merit Credit, he 6 denied petitioner’s request to have his release date restored, relying on a regulation that states 7 that—except pursuant to a court order—an inmate’s credit cannot be restored if that credit 8 advances the inmate’s release to a date less than 60 calendar days from the date of restoration. 9 (See id. at 13-14); Cal. Code Regs. tit. 15, § 3043(c). Petitioner filed his habeas petition in this 10 case on May 10, 2018, while the decision on his institutional grievance was pending. 11 II. ANALYSIS Generally, a federal court may not grant a state prisoner’s petition for a writ of habeas 12 13 corpus unless the prisoner has exhausted his remedies in state court. See 28 U.S.C. 14 § 2254(b)(1)(A); Brown v. Ahern, 676 F.3d 899, 900 (9th Cir. 2012) (applying exhaustion 15 requirement for Section 2241 petition). To satisfy the exhaustion requirement, a petitioner must 16 “fairly present” his habeas claims “in each appropriate state court . . . including a state supreme 17 court with powers of discretionary review.” Murray v. Schriro, 882 F.3d 778, 807 (9th Cir. 2018) 18 (quoting Baldwin v. Reese, 541 U.S. 27, 30 (2004)). The exhaustion requirement, rooted in the 19 principles of comity, ensures that the state courts have “the first opportunity . . . to correct the 20 errors made in the internal administration of their prisons.” Simpson v. Thomas, 528 F.3d 685, 21 692 (9th Cir. 2008) (quoting Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973)); accord Beames 22 v. Chappell, No. 1:10-cv-01429, 2015 WL 403938, at *3 (E.D. Cal. Jan. 28, 2015) (collecting 23 cases). 24 Here, petitioner has not exhausted his state remedies because he never presented his 25 claims to California state courts. Before dismissing his petition, however, the court must consider 26 whether any exception to the exhaustion requirement applies. A state prisoner need not exhaust 27 remedies in state court if “(i) there is an absence of available State corrective process; or (ii) 28 2 1 circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 2 U.S.C. § 2254 (b)(1)(B). As for the first condition, petitioner has a state corrective process 3 available to him: California courts have granted relief to inmates denied credit because of prison 4 administrators’ errors. See Basque v. Schwartz, No. 2:07-cv-258, 2009 WL 187920, at *2 (E.D. 5 Cal. Jan. 20, 2009), findings and recommendation adopted, 2009 WL 1110552 (E.D. Cal. Apr. 6 24, 2009) (collecting cases). 7 Similarly, petitioner has not demonstrated that circumstances exist that render the state 8 process “ineffective to protect the rights of the applicant.” The undersigned is mindful that 9 petitioner’s habeas claims require an expeditious ruling and that pursuing remedies in state court 10 will take time. Even so, only “extreme” or “unusual” delays in state court proceedings can justify 11 an immediate federal review, and any such delay must be “attributable to the state rather than to 12 the individual.” Edelbacher v. Calderon, 160 F.3d 582, 586 (9th Cir. 1998). There has been no 13 such delay here, since petitioner has yet to present his claims to California state courts. For these reasons, the undersigned will recommend that the court grant respondent’s 14 15 motion to dismiss. The undersigned will recommend that the dismissal be without prejudice. 16 III. 17 CERTIFICATE OF APPEALABILITY A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 18 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 19 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases 20 requires a district court to issue or deny a certificate of appealability when entering a final order 21 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 22 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes 23 “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This 24 standard requires the petitioner to show that “jurists of reason could disagree with the district 25 court’s resolution of his constitutional claims or that jurists could conclude the issues presented 26 are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord 27 Slack v. McDaniel, 529 U.S. 473, 484 (2000). 28 3 Here, reasonable jurists would not disagree either that petitioner’s state-court remedies are 1 2 unexhausted or that a California state court should have the first opportunity to address 3 petitioner’s claims. Thus, the undersigned will recommend that the court decline to issue a 4 certificate of appealability. 5 IV. FINDINGS AND RECOMMENDATIONS 6 The undersigned recommends that the court: 7 1. grant respondent’s motion to dismiss (Doc. No. 12); 8 2. dismiss the petition without prejudice; and 9 3. decline to issue a certificate of appealability. 10 The undersigned submits the findings and recommendations to the U.S. District Court 11 Judge presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 12 Practice for the United States District Court, Eastern District of California. Within FOURTEEN 13 (14) days of the service of the findings and recommendations, petitioner may file written 14 objections to the findings and recommendations with the court and serve a copy on all parties. 15 That document must be captioned “Objections to Magistrate Judge’s Findings and 16 Recommendations.” The District Judge will then review the findings and recommendations 17 under 28 U.S.C. § 636(b)(1)(C). Petitioner’s failure to file objections within the specified time 18 may result in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 19 Cir. 2014). 20 21 22 IT IS SO ORDERED. Dated: June 25, 2018 /s/ 23 Jeremy D. Peterson UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 4
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