(HC) Searcy v. People of The State of California, No. 2:2007cv00368 - Document 12 (E.D. Cal. 2008)
Court Description: ORDER and FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 02/05/08 ORDERING that 10 Findings and Recommendations are VACATED and RECOMMENDING that 11 petitioner's 01/17/08 request for stay be denied and the petition for writ of habeas corpus be dismissed for failure to exhaust state remedies. Objections due w/i 20 days; referred to Judge Garland E. Burrell, Jr. (Benson, A)
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(HC) Searcy v. People of The State of California Doc. 12 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ANGELO SEARCY, 11 Petitioner, 12 13 No. CIV S-07-0368 GEB KJM P vs. PEOPLE OF THE STATE OF CALIFORNIA, ORDER AND 14 Respondent. 15 FINDINGS AND RECOMMENDATIONS / 16 Petitioner, a state prisoner proceeding pro se, has filed this application for a writ 17 of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 18 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262. 19 20 On August 3, 2007, respondent filed a motion to dismiss on the ground that the claims in the petition have not been exhausted. 21 On October 15, 2007, the court issued an order to show cause, directing petitioner 22 to demonstrate why the motion should not be granted and warning petitioner that the case would 23 be dismissed should he fail to respond. 24 On December 17, 2007, this court recommended that the case be dismissed as a 25 result of petitioner’s failure to prosecute. 26 ///// 1 Dockets.Justia.com 1 On January 17, 2008, petitioner filed objections to the findings and 2 recommendations. He does not address his earlier failure to respond to the motion or to the 3 court’s order, but rather asks for a stay of the proceedings to enable him to exhaust state 4 remedies. 5 The exhaustion of state court remedies is a prerequisite to the granting of a 6 petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must 7 be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, 8 thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by 9 providing the highest state court with a full and fair opportunity to consider all claims before 10 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 11 Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986). 12 The state court has had an opportunity to rule on the merits when the petitioner 13 has fairly presented the claim to that court. The fair presentation requirement is met where the 14 petitioner has described the operative facts and legal theory on which his claim is based. Picard, 15 404 U.S. at 277-78. Generally, it is “not enough that all the facts necessary to support the federal 16 claim were before the state courts . . . or that a somewhat similar state-law claim was made.” 17 Anderson v. Harless, 459 U.S. 4, 6 (1982). Instead, 18 21 [i]f 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. 22 Duncan v. Henry, 513 U.S. 364, 365 (1995). Accordingly, “a claim for relief in habeas corpus 23 must include reference to a specific federal constitutional guarantee, as well as a statement of the 24 facts which entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 116 S. Ct. 2074, 19 20 25 1 26 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2). 2 1 2081 (1996). The United States Supreme Court has held that a federal district court may not 2 entertain a petition for habeas corpus unless the petitioner has exhausted state remedies with 3 respect to each of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982). 4 Petitioner raises one claim with several subparts and one additional claim in his 5 petition. In his first ground for relief, petitioner asserts there were no fingerprint comparisons or 6 DNA tests conducted on the evidence and that the trial court instructed the jury with CALJIC No. 7 2.62. In his second ground for relief, petitioner argues that the trial court abused its discretion in 8 instructing the jury to continue to deliberate after it declared a deadlock. 9 After reviewing the record in this action, the court finds petitioner has failed to 10 exhaust state court remedies as to any of the claims raised in his federal petition. In the Petition 11 for Review filed in the California Supreme Court, petitioner argued that the instruction given to 12 the deadlocked jury was coercive and urged the court to consider the propriety of the instruction 13 approved in an earlier Court of Appeal case. Lodged Document 5 at 5. Petitioner did not cite 14 any federal constitutional provisions or case law or even couch the argument in terms of 15 constitutional due process or the right to a fair trial. Moreover, petitioner did not raise the 16 additional grounds included in the federal petition in the California Supreme Court. The petition 17 is completely unexhausted. 18 Petitioner has asked for a stay, however, to allow him to exhaust state remedies. 19 In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court recognized that a 20 district court has the discretion to stay a “mixed” petition containing both exhausted and 21 unexhausted claims in order to allow a petitioner to exhaust state court remedies: 22 23 24 [I]t likely would be an abuse of discretion for a district court to deny a stay ... if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. 25 Id. at 278. In Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006), the Court of Appeals 26 remanded a completely unexhausted petition so the district court could consider whether a stay 3 1 was appropriate under the Rhines factors. The appellate court's determination was based, in part, 2 on its recognition that a dismissal of Dolis's unexhausted petition “would effectively end any 3 chance at federal habeas review.” Id.; see also Akins v. Kenney, 410 F.3d 451, 456 n.1 (8th Cir. 4 2005) (remanding so the district court could consider a stay even though Court of Appeal was not 5 convinced any of the claims were exhausted). 6 7 In this case, however, petitioner has not made a sufficient showing under Rhines to justify the stay. The petition should be dismissed as unexhausted. 8 9 Accordingly, IT IS HEREBY ORDERED that the findings and recommendations of December 17, 2007 are hereby vacated. 10 IT IS HEREBY RECOMMENDED that: 11 1. Petitioner’s January 17, 2008 request for a stay be denied; and 12 2. The petition for a writ of habeas corpus be dismissed for failure to exhaust 13 state remedies. 14 These findings and recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 16 days after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 19 shall be served and filed within ten days after service of the objections. The parties are advised 20 that failure to file objections within the specified time may waive the right to appeal the District 21 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 DATED: February 5, 2008. 23 24 25 26 2/sear0368.57 4
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