(HC) Word v. Haviland, No. 2:2009cv02329 - Document 14 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 12/18/09 RECOMMENDING that respondent's 12 motion to dismiss be granted. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due w/in 20 days. (Yin, K)
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(HC) Word v. Haviland Doc. 14 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MYRON EUGENE WORD, 11 Petitioner, 12 13 vs. J. W. HAVILAND, 14 Respondent. 15 16 No. CIV S-09-2329 GEB GGH P FINDINGS AND RECOMMENDATIONS / I. Introduction 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2008 decision by the California 19 Board of Parole Hearings (BPH) finding him unsuitable for parole. Petitioner contends that the 20 BPH improperly re-litigated his commitment offense and did not adequately consider his prison 21 record. 22 Pending before the court is respondent’s November 5, 2009, motion to dismiss. 23 Respondent argues that petitioner’s claims are not exhausted. After carefully reviewing the 24 record, the court recommends that respondent’s motion be granted. 25 ///// 26 ///// 1 Dockets.Justia.com 1 2 II. Exhaustion The exhaustion of state court remedies is a prerequisite to the granting of a 3 petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must 4 be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, 5 thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by 6 providing the highest state court with a full and fair opportunity to consider all claims before 7 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 512 8 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). 9 To satisfy the exhaustion requirement, a federal claim must be presented to the 10 appropriate state courts “in the manner required by the state courts, thereby ‘afford[ing] the state 11 courts a meaningful opportunity to consider allegations of legal error[ ].’” Casey v. Moore, 386 12 F.3d 896, 915-16 (9th Cir.2004), quoting Vasquez v. Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 13 620 (1986). Where a state court advises a petitioner what must be done before a petition will be 14 reviewed on its merits, such advice must be followed unless the state courts are arbitrarily 15 finding procedural deficiencies. Kim v. Villalobos, 799 F.2d 1317 (9th Cir.1986). 16 The California Supreme Court denied the petition for failing to provide an 17 adequate record by citing People v. Duvall, 9 Cal.4th 464, 474 (1995). Attached to the motion to 18 dismiss as Exhibit A is a complete copy of the petition filed by petitioner in the California 19 Supreme Court. While petitioner attached several exhibits to this petition, he did not include a 20 copy of the transcript from the disputed 2008 suitability hearing. 21 Respondent argues that petitioner’s claims are not exhausted because he failed to 22 provide the California Supreme Court with a copy of the 2008 suitability hearing transcript. The 23 undersigned agrees. The California Supreme Court did not review the merits of petitioner’s 24 claims because he failed to include a copy of the transcript from the 2008 suitability hearing. 25 Petitioner is not precluded from presenting a new petition to the California Supreme Court that 26 cures this pleading defect. For these reasons, the claims raised in the instant petition are not 2 1 exhausted and the motion to dismiss should be granted. 2 3 Accordingly, IT IS HEREBY RECOMMENDED that respondent’s November 5, 2009, motion to dismiss (no. 12) be granted. 4 These findings and recommendations are submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 6 days after being served with these findings and recommendations, any party may file written 7 objections with the court and serve a copy on all parties. Such a document should be captioned 8 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 9 shall be served and filed within ten days after service of the objections. The parties are advised 10 that failure to file objections within the specified time may waive the right to appeal the District 11 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 DATED: December 18, 2009 13 /s/ Gregory G. Hollows 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 wo2329.mtd 18 19 20 21 22 23 24 25 26 3
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