Oscar Villanueva v. C. Pfeiffer
Filing
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ORDER RE SUMMARY DISMISSAL OF ACTION WITHOUT PREJUDICE by Judge S. James Otero: (see attached) IT IS THEREFORE ORDERED that this action be summarily dismissed without prejudice, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. 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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OSCAR VILLANUEVA,
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Petitioner,
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v.
C. PFEIFFER, WARDEN,
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Respondent.
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No. CV 16-492 SJO (FFM)
ORDER RE SUMMARY
DISMISSAL OF ACTION WITHOUT
PREJUDICE
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On January 22, 2016, Petitioner Oscar Villanueva (“Petitioner”) filed a
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Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”),
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pursuant to 28 U.S.C. § 2254. The Petition alleges various constitutional
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violations in connection with Petitioner’s prison disciplinary hearing that occurred
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on April 28, 2013. (Petition at 4).1
“Before a federal court may grant habeas relief to a state prisoner, the
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prisoner must exhaust his remedies in state court.” O’Sullivan v. Boerckel, 526
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U.S. 838, 842 (1999); accord Rose v. Lundy, 455 U.S. 509, 518-22, 102 S. Ct.
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1198, 71 L. Ed. 2d 379 (1982). The habeas statute explicitly provides that a
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habeas petition brought by a person in state custody “shall not be granted unless it
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All citations to filings in this case refer to the pagination provided by the
Court’s electronic docket.
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appears that -- (A) the applicant has exhausted the remedies available in the courts
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of the State; or (B)(i) there is an absence of available State corrective process; or
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(ii) circumstances exist that render such process ineffective
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to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). Moreover, if the
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exhaustion requirement is to be waived, it must be waived expressly by the State,
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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)(citations
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omitted); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (per curiam);
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see also Granberry v. Greer, 481 U.S. 129, 134-35, 107 S. Ct. 1671, 95 L. Ed. 2d
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119 (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 claims. The Petition does not include any
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documents suggesting that Petitioner has exhausted the claims presently raised
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before this Court.2 Additionally, a review of California Supreme Court records
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The Court notes that Petitioner has attached to the Petition two state court
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Appellate District of the California Court of Appeal. (Petition at 13–15). However,
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reveals that Petitioner has never filed a habeas petition with the California
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Supreme Court. See http://appellatecases.courtinfo.ca.gov (last visited February
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4, 2016).
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Because Petitioner has not raised his present claims in the California
Supreme Court, the Petition is unexhausted.
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If it were clear that Petitioner is raising federal claims and that the
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California Supreme Court would hold that Petitioner’s unexhausted federal claims
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are procedurally barred under state law, then the exhaustion requirement would be
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satisfied. In that event, although the exhaustion impediment to consideration of
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Petitioner’s claims on the merits would be removed, federal habeas review of the
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claim would remain 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). Here, it is neither “clear” that Petitioner is
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raising a federal claim nor that the California Supreme Court would hold that
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Petitioner’s federal claim is procedurally barred under state law. See, e.g., People
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v. Sorensen, 111 Cal. App. 2d 404, 405 (1952) (noting that claims that
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fundamental constitutional rights have been violated may be raised by state habeas
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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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///
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28 these state opinions do not discuss the claims raised in the instant Petition. In any
event, the claims discussed in the state court decisions are also unexhausted.
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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: February 12, 2016.
S. JAMES OTERO
United States District Judge
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Presented by:
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/S/ FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magistrate Judge
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