(HC) Abron v. Sisto, No. 2:2008cv01468 - Document 19 (E.D. Cal. 2009)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 7/31/09 ORDERING that Clerk assign this case to a district judge; RECOMMENDING that 16 MOTION for stay be denied; and 14 MOTION to DISMISS be granted and the petition be dismissed without prejudice for failure to exhaust state remedies. Randomly assigned and referred to Judge William B. Shubb; Objections to F&R due within 20 days.(Dillon, M)

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(HC) Abron v. Sisto Doc. 19 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KURT ABRON, 11 12 13 14 Petitioner, vs. D.K. SISTO, ORDER AND Respondent. 15 16 No. CIV S-08-1468 KJM FINDINGS AND RECOMMENDATIONS / Petitioner is a state prison inmate proceeding pro se with a petition for a writ of 17 habeas corpus under 28 U.S.C. § 2254, challenging a 2007 denial of parole. Respondent has 18 filed a motion to dismiss, arguing that petitioner has failed to exhaust state remedies. In 19 response, petitioner has asked the court to stay the proceedings to allow him to pursue state 20 remedies. He alleges he has begun the exhaustion process by filing a proper habeas petition in 21 San Francisco Superior Court in January 2009. 22 I. Procedural Background 23 Petitioner filed a petition for a writ of habeas corpus in San Francisco County 24 Superior Court in September 2007. Motion to Dismiss (MTD), Ex. A. On January 4, 2008, the 25 Superior Court denied the petition “[b]ecause petitioner did not include copies of the [parole] 26 hearing transcript. . . .” Id., Ex. B. It cited People v. Duvall, 9 Cal.4th 464, 474 (1995). 1 Dockets.Justia.com 1 Petitioner then turned to the state Court of Appeal for the First Appellate District, 2 Id., Ex. C. That court denied the writ because “[p]etitioner does not allege he first sought relief 3 in San Francisco Superior Court prior to seeking relief in this court. (Cal. Rules of Court, rule 4 8.380(d)(2).)” Id., Ex. D. 5 Finally, petitioner filed a habeas petition in the California Supreme Court, which 6 denied the petition in a single-line “postcard” denial. Id., Exs. E & F. 7 II. Analysis 8 9 The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion 10 requirement by providing the highest state court with a full and fair opportunity to consider all 11 claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); 12 Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). If a claim “has been presented for the 13 first and only time in a procedural context in which its merits will not be considered unless there 14 are special and important reasons therefor,” it has not been fairly presented and thus not 15 exhausted. Castille v. Peoples, 489 U.S. 346, 351 (1989) (internal citation, quotation omitted). 16 In Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991), the Supreme Court said “where 17 ... the last reasoned opinion on the claim explicitly imposes a procedural default, we will 18 presume that a later decision rejecting the claim did not silently disregard that bar and consider 19 the merits.” Accordingly, this court considers the Court of Appeal’s decision in determining 20 whether petitioner presented his claims in a procedural context that precluded consideration on 21 the merits. 22 ///// 23 ///// 24 ///// 25 ///// 26 ///// 2 1 2 In 2007, Rule 8.380(d)(2) of the California Rules of Court provided, in pertinent part: 3 A Court of Appeal must deny without prejudice a petition for writ of habeas corpus that challenges the denial of parole ... if the issue was not first adjudicated by the trial court that rendered the underlying judgment. 4 5 6 Cal. Rules of Court, Rule 8.380(d)(2) (West’s Historical Note). In this case, the cover of 7 petitioner’s Court of Appeal filing denominated the action as an appeal from a judgment of the 8 San Francisco County Superior Court, but in the body of the action, petitioner answered in the 9 negative when the habeas form asked for information about “other petitions, applications, or 10 motions. . . .” MTD, Ex. C (answer to question 12). The Court of Appeal relied on this 11 representation in issuing its denial. Thereafter, petitioner could have refiled in that court, alerting 12 it to the Superior Court’s earlier denial, but he chose instead to proceed in an inadequate 13 procedural posture to the California Supreme Court. He thus has not exhausted his state 14 remedies. 15 Petitioner asks, however, that this court stay the action to permit him to complete 16 the exhaustion process begun now in January 2009. In Rhines v. Weber, 544 U.S. 269, 277 17 (2005), the Supreme Court held that a district court may stay a mixed petition, containing both 18 exhausted and unexhausted claims, pending exhaustion of state remedies. Rhines does not 19 permit a court to stay a completely unexhausted petition. Accordingly, the instant petition should 20 be dismissed without prejudice. 21 IT IS HEREBY ORDERED that the Clerk of the Court assign this case to a 22 district judge.1 23 ///// 24 ///// 25 26 1 Although petitioner has returned his consent form, respondent has not. 3 1 IT IS HEREBY RECOMMENDED that: 2 1. Petitioner’s request for a stay (docket no. 16) be denied; and 3 2. Respondent’s motion to dismiss (docket no. 14) be granted and the petition be 4 dismissed without prejudice for failure to exhaust state remedies. 5 These findings and recommendations are submitted to the United States District 6 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 7 days after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 10 shall be served and filed within ten days after service of the objections. The parties are advised 11 that failure to file objections within the specified time may waive the right to appeal the District 12 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 DATED: July 31, 2009. 14 15 16 17 18 19 20 21 22 23 24 25 26 2/abro1468.157 4

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