Daniel Arnoldo Andrade v. M. F. Martel

Filing 4

ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE by Judge Michael W. Fitzgerald: (see attached) Case Terminated. Made JS-6. (jm)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DANIEL ARNOLDO ANDRADE,

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v.
M.F. MARTEL,

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Petitioner,
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Respondent. )
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No. CV 14-3959 MWF (FFM)
ORDER SUMMARILY DISMISSING
PETITION FOR WRIT OF HABEAS
CORPUS WITHOUT PREJUDICE

On May 22, 2014, petitioner filed a Petition for Writ of Habeas Corpus by a
Person in State Custody (“Petition”).
As a matter of comity, a federal court will not entertain a habeas corpus
petition unless the petitioner has exhausted the available state judicial remedies on
every ground presented in the petition. Rose v. Lundy, 455 U.S. 509, 518-22, 102
S. Ct. 1198, 71 L. Ed. 2d 379 (1982). The habeas statute now explicitly provides
that a habeas petition brought by a person in state custody “shall not be granted
unless it appears that -- (A) the applicant has exhausted the remedies available in
the courts of the State; or (B)(i) there is an absence of available State corrective
process; or (ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). Moreover, if the
exhaustion requirement is to be waived, it must be waived expressly by the State,
through counsel. See 28 U.S.C. § 2254(b)(3).

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Exhaustion requires that the prisoner’s contentions be fairly presented to the

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state courts, and be disposed of on the merits by the highest court of the state.

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Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979). A claim has not been fairly

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presented unless the prisoner has described in the state court proceedings both the

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operative facts and the federal legal theory on which his claim is based. See

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Duncan v. Henry, 513 U.S. 364, 365-66, 115 S. Ct. 887, 130 L. Ed. 2d 865

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(1995); Picard v. Connor, 404 U.S. 270, 275-78, 92 S. Ct. 509, 30 L. Ed. 2d 438

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(1971); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). A federal court may

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raise the failure to exhaust issues sua sponte and may summarily dismiss on that

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ground. See Stone v. San Francisco, 968 F.2d 850, 856 (9th Cir. 1992);

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Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (per curiam); see also

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Granberry v. Greer, 481 U.S. 129, 134-35, 107 S. Ct. 1671, 95 L. Ed. 2d 119

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(1987).

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Petitioner has the burden of demonstrating that he has exhausted available

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state remedies. See, e.g., Brown v. Cuyler, 669 F.2d 155, 158 (3rd Cir. 1982).

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Here, it plainly appears from the face of the Petition that petitioner cannot meet

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this burden with respect to his claim. Petitioner alleges that he has not filed any

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petition for review of his conviction or petition for writ of habeas corpus with the

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California Supreme Court. (Petition at ¶¶ 4-6.)

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Because petitioner has not raised his present claims with the California
Supreme Court, the Petition is unexhausted.

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If it were clear that petitioner is raising a federal claim and that the

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California Supreme Court would hold that petitioner’s unexhausted federal claim

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was procedurally barred under state law, then the exhaustion requirement would

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be satisfied. In that event, although the exhaustion impediment to consideration of

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petitioner’s claim on the merits would be removed, federal habeas review of the

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claim would still be barred unless petitioner could demonstrate “cause” for the

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default and “actual prejudice” as a result of the alleged violation of federal law, or
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demonstrate that failure to consider the claims would result in a “fundamental

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miscarriage of justice.” See Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct.

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2546, 115 L. Ed. 2d 640 (1991). However, it is not “clear” here that the

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California Supreme Court will hold that petitioner’s federal claim is procedurally

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barred under state law. See, e.g., In re Harris, 5 Cal. 4th 813, 825 (1993)

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(granting habeas relief where petitioner claimed sentencing error, even though the

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alleged sentencing error could have been raised on direct appeal); People v.

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Sorensen, 111 Cal. App. 2d 404, 405 (1952) (noting that claims that fundamental

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constitutional rights have been violated may be raised by state habeas petition).

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The Court therefore concludes that this is not an appropriate case for

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invocation of either exception to the exhaustion requirement regarding the

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existence of an effective state corrective process.

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Therefore, the Petition is subject to dismissal.

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IT IS THEREFORE ORDERED that this action be summarily dismissed

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without prejudice, pursuant to Rule 4 of the Rules Governing Section 2254 Cases

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in the United States District Courts.

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LET JUDGEMENT BE ENTERED ACCORDINGLY.

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Dated: May 29, 2014

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_________________________
MICHAEL W. FITZGERALD
United States District Judge

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Presented by:
/S/ FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magistrate Judge

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