Cleveland Jones v. Jimmy Walker

Filing 23

ORDER DISMISSING PETITION FORWRIT OF HABEAS CORPUS by Judge Dean D. Pregerson. IT IS THEREFORE ORDERED that the Petition is dismissed and that Judgment be entered accordingly. (rp)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CLEVELAND JONES, Petitioner, 12 v. 13 14 JIMMY WALKER, 15 16 Respondent. ____________________________ ) Case No. CV 07-1616 DDP(JC) ) ) ) ORDER DISMISSING PETITION FOR ) WRIT OF HABEAS CORPUS ) ) ) ) ) ) ) 17 18 19 I. SUMMARY On March 12, 2007, petitioner, who is proceeding pro se, filed a Petition for 20 Writ of Habeas Corpus by a Person in State Custody (the “Petition”) and an 21 Application to Stay Proceedings pending Exhaustion of State Court Remedies 22 (“Stay Application”). The Petition asserts two claims for relief: (1) newly 23 discovered evidence proves that petitioner is actually innocent by reason of 24 insanity; and (2) petitioner’s trial counsel was ineffective in failing to discovery 25 and present the new evidence. (Petition at 5-6a). Petitioner represents in the Stay 26 Application that such claims were unexhausted as of the filing of the Petition and 27 Stay Application. (Stay Application at 5). In the Stay Application, petitioner 28 requested a stay of the wholly unexhausted Petition and represented that he was 1 then “preparing a petition for writ of habeas corpus containing [the foregoing] 2 claims that he [was] filing with the California Supreme Court.” (Stay Application 3 at 3). The Court thereafter effectively held this action in abeyance, essentially 4 affording petitioner an opportunity to exhaust his unexhausted claims. On December 13, 2013, as it appeared to the Court from the absence of any 5 6 record on the dockets of the California Supreme Court (available via 7 http://appellatecases.courtinfo. of petitioner filing a habeas petition in such 8 court, let alone a habeas petition which contained the two claims raised in the 9 pending federal Petition in this action, the Court ordered petitioner to show cause 10 in writing as to why the Petition should not be dismissed without prejudice based 11 on petitioner’s failure to exhaust state remedies (“Order to Show Cause”). The 12 Court further ordered, that if it was petitioner’s contention that he had in fact 13 exhausted such claims, his response to the Order to Show Cause must indicate how 14 and when petitioner raised his claims with the California Supreme Court, including 15 the date of the California Supreme Court’s decision regarding his claims. On January 14, 2014, petitioner filed a response to the Order to Show Cause 16 17 asserting, contrary to representations he made in the Stay Application, that the 18 claims in the instant federal Petition were contained in a petition for review which 19 the California Supreme Court denied in Case No. B174222 on January 25, 2006 – 20 before the federal Petition in this action was filed. Petitioner now claims that he 21 has exhausted all available state remedies. On March 18, 2014, respondent filed a response to petitioner’s response to 22 23 the Order to Show Cause and lodged multiple documents (“Lodged Docs.”). 24 Respondent presents evidence which establishes that petitioner has not exhausted 25 either of the claims in the Petition. 26 /// 27 /// 28 As the record now establishes that the Petition is wholly unexhausted, and as 2 1 the Court has already afforded ample time to petitioner to remedy this matter and 2 he has not done so, the Petition is dismissed without prejudice. 3 II. PROCEDURAL HISTORY On July 10, 2003, in Los Angeles County Superior Court, petitioner was 4 5 convicted of attempted murder (counts 1, 6), robbery (count 2), possession of an 6 assault weapon (count 3), possession of a firearm by a felon (count 4), and assault 7 upon a peace officer (count 5). (Lodged Doc. 1). The trier of fact further found 8 multiple prior conviction and firearm allegations to be true. (Lodged Doc. 1). On 9 March 23, 2004, the court sentenced petitioner to 217 years to life in state prison. 10 (Lodged Doc. 1). 11 On November 9, 2005, in Case No. B174222, the California Court of Appeal 12 reversed petitioner’s possession of an assault weapon conviction (count 3), reduced 13 his sentence, and otherwise affirmed the judgment. (Lodged Doc. 7). On December 20, 2005, petitioner filed a petition for review in the 14 15 California Supreme Court raising the following claims: (1) the trial court violated 16 constitutional due process by failing to recognize its discretion to impose 17 concurrent sentences under California’s Three Strikes law; and (2) the trial court 18 violated constitutional due process by failing to recognize it had discretion to strike 19 prior conviction allegations on individual subordinate counts. (Petition at 4a; 20 Lodged Doc. 8). On January 25, 2006, in Case No. S139810, the California 21 Supreme Court denied the petition for review. (Lodged Doc. 9). The dockets of the California Supreme Court do not contain any record of 22 23 petitioner filing a habeas petition or seeking any other relief relative to the 24 judgment in issue. See 25 III. DISCUSSION 26 A federal court will not grant a state prisoner’s petition for writ of habeas 27 corpus unless it appears that the prisoner has exhausted available state remedies. 28 28 U.S.C. § 2254(b), (c); Baldwin v. Reese, 541 U.S. 27, 29 (2004); O’Sullivan v. 3 1 Boerckel, 526 U.S. 838, 842 (1999); Park v. California, 202 F.3d 1146, 1150 (9th 2 Cir.), cert. denied, 531 U.S. 918 (2000). “For reasons of federalism, 28 U.S.C. 3 § 2254 requires federal courts to give the states an initial opportunity to correct 4 alleged violations of its prisoners’ federal rights.” Kellotat v. Cupp, 719 F.2d 5 1027, 1029 (9th Cir. 1983) (citation omitted). 6 Exhaustion requires that the prisoner’s contentions be fairly presented to the 7 highest court of the state. Davis v. Silva, 511 F.3d 1005, 1008 (9th Cir. 2008) 8 (citation omitted); James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied, 513 U.S. 9 935 (1994). A claim has not been fairly presented unless the prisoner has 10 described in the state court proceedings both the operative facts and the federal 11 legal theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365- 12 66 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); 13 Scott v. Schriro, 567 F.3d 573, 582 (9th Cir.) (per curiam), cert. denied, 130 S. Ct. 14 1014 (2009); Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999). 15 Petitioner has the burden of demonstrating he has exhausted available state 16 remedies. See, e.g., Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972) (per 17 curiam); Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.), cert. denied, 522 U.S. 18 833 (1997); Rollins v. Superior Court, 706 F. Supp. 2d 1008, 1011 (C.D. Cal. 19 2010). In the present proceeding, petitioner has not done so. As noted above, 20 consistent with petitioner’s original representations to the Court in the Stay 21 Application, and contrary to his current representations to the Court in his response 22 to the Order to Show Cause, petitioner has not presented either of the claims in the 23 Petition to the California Supreme Court. Accordingly, the Petition is wholly 24 unexhausted. 25 The Court notes that the exhaustion requirement may be satisfied if a 26 petitioner’s unexhausted claims are clearly procedurally barred under state law. 27 See Castille v. Peoples, 489 U.S. 346, 351-52 (1989); Johnson v. Zenon, 88 F.3d 28 828, 831 (9th Cir. 1996). In this case, however, it is not “clear” that the California 4 1 Supreme Court would deem petitioner’s claims procedurally barred under state law 2 if he were to raise them in a habeas petition in the California Supreme Court. See 3 In re Harris, 5 Cal. 4th 813, 825 (1993) (“[H]abeas corpus has become a proper 4 remedy in this state to collaterally attack a judgment of conviction which has been 5 obtained in violation of fundamental constitutional rights.”) (citations omitted); 6 People v. Sorenson, 111 Cal. App. 2d 404, 405 (1952) (claims that 7 fundamental constitutional rights have been violated may be raised by state habeas 8 petition).1 Once a Court determines that a habeas petition contains only unexhausted 9 10 claims, it may dismiss the petition for failure to exhaust. Rasberry v. Garcia, 448 11 F.3d 1150, 1154 (9th Cir. 2006). Accordingly, because the Petition in this case is 12 wholly unexhausted, dismissal thereof is appropriate. 13 IV. 14 ORDER IT IS THEREFORE ORDERED that the Petition is dismissed and that 15 Judgment be entered accordingly. 16 DATED: March 27, 2014 17 ________________________________________ HONORABLE DEAN D. PREGERSON UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 1 26 27 28 This Court expresses no opinion regarding whether consideration of a state habeas petition might be foreclosed by the principles discussed in In Re Clark, 5 Cal. 4th 750, 763-87 (1993). The California Supreme Court should evaluate the matter in the first instance. Even if an applicable state procedural bar exists, the California Supreme Court nevertheless might choose to reach the merits of petitioner’s claims. See, e.g., Park, 202 F.3d at 1151-52. 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?