(HC) Smith v. Sullivan, No. 1:2018cv01593 - Document 6 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Writ of Habeas Corpus; Court Clerk to Assign District Judge, signed by Magistrate Judge Sheila K. Oberto on 12/26/18. Referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. This Case is Assigned to Chief Judge Lawrence J. O'Neill and Magistrate Judge Sheila K. Oberto. The New Case No. is: 1:18-cv-01593-LJO-SKO. (Gonzalez, R)
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(HC) Smith v. Sullivan Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GARY SMITH, 12 Petitioner, 13 14 No. 1:18-cv-01593-SKO (HC) v. FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS W.J. Sullivan, 15 Respondent. 16 COURT CLERK TO ASSIGN DISTRICT JUDGE (Doc. 1) 17 18 SCREENING ORDER 19 20 Petitioner, Gary Smith, is a state prisoner proceeding pro se with a petition for writ of habeas 21 corpus pursuant to 28 U.S.C. § 2254. The petition seeks review of a decision of the California state 22 trial court. 23 I. 24 Preliminary Screening Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary 25 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly 26 27 28 appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A 1 Dockets.Justia.com 1 petition for habeas corpus should not be dismissed without leave to amend unless it appears that no 2 tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson, 440 F.2d 3 13, 14 (9th Cir. 1971). 4 II. Procedural and Factual Background 5 Petitioner filed his petition on November 19, 2018. Petitioner was convicted of robbery by 6 7 the Fresno County Superior Court on January 23, 2003. Based on Petitioner’s petition for writ of 8 habeas corpus, it does not appear he filed any direct appeals, nor post-conviction relief in California 9 state court. 10 11 III. Standard of Review Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of 12 13 14 15 the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme malfunctions" in state criminal justice proceedings. Id. 16 Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism 17 and Effective Death Penalty Act of 1996 (AEDPA), the Court must apply its provisions. Lindh v. 18 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), overruled 19 on other grounds by Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012). Under AEDPA, a petitioner 20 21 22 23 24 25 can prevail only if he can show that the state court's adjudication of his claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 26 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams v. Taylor, 529 U.S. 27 362, 413 (2000). 28 "By its terms, § 2254(d) bars relitigation of any claim 'adjudicated on the merits' in state 2 1 court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 2 562 U.S. 86, 98 (2011). 3 As a threshold matter, a federal court must first determine what constitutes "clearly 4 established Federal law, as determined by the Supreme Court of the United States." Lockyer, 538 5 6 U.S. at 71. To do so, the Court must look to the holdings, as opposed to the dicta, of the Supreme 7 Court's decisions at the time of the relevant state-court decision. Id. The court must then consider 8 whether the state court's decision was "contrary to, or involved an unreasonable application of, 9 clearly established Federal law." Id. at 72. The state court need not have cited clearly established 10 11 Supreme Court precedent; it is sufficient that neither the reasoning nor the result of the state court contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002). The federal court must apply the presumption 12 13 14 that state courts know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). The petitioner has the burden of establishing that the decision of the state court is contrary to, or 15 involved an unreasonable application of, United States Supreme Court precedent. Baylor v. Estelle, 16 94 F.3d 1321, 1325 (9th Cir. 1996). 17 18 The AEDPA standard is difficult to satisfy since even a strong case for relief does not demonstrate that the state court's determination was unreasonable. Harrington, 562 U.S. at 102. 19 "A federal habeas court may not issue the writ simply because the court concludes in its independent 20 21 judgment that the relevant state-court decision applied clearly established federal law erroneously 22 or incorrectly." Lockyer, 538 U.S. at 75-76. "A state court's determination that a claim lacks merit 23 precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of 24 the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 25 652, 664 (2004)). Put another way, a federal court may grant habeas relief only when the state 26 court's application of Supreme Court precedent was objectively unreasonable and no fair-minded 27 jurist could disagree that the state court's decision conflicted with Supreme Court's precedent. 28 3 1 Williams, 529 U.S. at 411. 2 IV. 3 Exhaustion of State Remedies Petitioner does not appear to have appealed his conviction in California state court. A 4 petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition 5 6 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 9 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 10 11 1163 (9th Cir. 1988). A petitioner can satisfy the exhaustion requirement by providing the highest state court with 12 13 14 a full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 15 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a 16 full and fair opportunity to hear a claim if the petitioner has presented the highest state court with 17 the claim's factual and legal basis. Duncan, 513 U.S. at 365; Kenney v. Tamayo-Reyes, 504 U.S. 18 1, 8 (1992). 19 The petitioner must also have specifically informed the state court that he was raising a 20 21 federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 22 (9th Cir. 2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 23 1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). If any grounds for collateral relief 24 set forth in a petition for habeas corpus are unexhausted, the Court must dismiss the petition. 28 25 U.S.C. § 2254(b)(1); Rose, 455 U.S. at 521-22. 26 27 28 4 1 2 3 V. Certificate of Appealability A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell, 4 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate 5 6 7 8 9 10 11 of appealability is 28 U.S.C. § 2253, which provides: (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. 12 13 14 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— 16 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 17 (B) the final order in a proceeding under section 2255. 15 18 19 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. 20 21 22 (3) The certificate of appealability under paragraph (1) shall indicate which specific issues or issues satisfy the showing required by paragraph (2). 23 If a court denies a habeas petition, the court may only issue a certificate of appealability "if 24 jurists of reason could disagree with the district court's resolution of his constitutional claims or 25 that jurists could conclude the issues presented are adequate to deserve encouragement to proceed 26 further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the 27 petitioner is not required to prove the merits of his case, he must demonstrate "something more than 28 5 1 the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. 2 at 338. 3 In the present case, the Court finds that reasonable jurists would not find the Court's 4 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or 5 6 deserving of encouragement to proceed further. Accordingly, the Court recommends declining to 7 issue a certificate of appealability. 8 VI. 9 10 Conclusion and Recommendation Based on the foregoing, the undersigned hereby recommends that the Court dismiss the petition and decline to issue a certificate of appealability. 11 These Findings and Recommendations will be submitted to the United States District Judge 12 13 14 assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, either party may file written 15 objections with the Court. The document should be captioned AObjections to Magistrate Judge=s 16 Findings and Recommendations.@ Replies to the objections, if any, shall be served and filed within 17 fourteen (14) days after service of the objections. The parties are advised that failure to file 18 objections within the specified time may constitute waiver of the right to appeal the District Court's 19 order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923 20 21 F.2d 1391, 1394 (9th Cir. 1991)). The Court Clerk is hereby directed to assign a district judge to this action. 22 23 24 25 26 IT IS SO ORDERED. Dated: December 26, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 27 28 6 .