Timothy Tyrone Lenard v. S. Sherman

Filing 12

ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS 1 AND DENYING CERTIFICATE OF APPEALABILITY by Judge Fernando M. Olguin. IT IS THEREFORE ORDERED that this action is dismissed without prejudice for failure to exhaust state remedies. IT IS FURTHER ORDERED that a certificate of appealability is denied. Case Terminated. Made JS-6. (See Order for Further Details) (kl)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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TIMOTHY TYRONE LENARD,
Petitioner,

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v.
S. SHERMAN,
Respondent.

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Case No. CV 17-2383-FMO (JEM)
ORDER SUMMARILY DISMISSING
PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE
OF APPEALABILITY

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PROCEDURAL BACKGROUND
On March 28, 2017, Timothy Tyrone Lenard (“Petitioner”), a California prisoner
proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28
U.S.C. § 2254, challenging Petitioner's July 14, 2016 conviction and August 31, 2016
sentence in Los Angeles County Superior Court case number MA067996. On April 24,
2017, Petitioner filed a First Amended Petition ("FAP"). It appeared on the face of the FAP
that all of Petitioner’s claims were unexhausted because Petitioner failed to present his
claims to the California Supreme Court. Accordingly, on April 28, 2017, the Court issued an
Order to Show Cause Why This Action Should Not Be Dismissed for Failure to Exhaust
State Remedies ("OSC"). The OSC indicated that the FAP was subject to dismissal
because Petitioner acknowledged that he had not exhausted his state remedies as to any of

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the grounds for relief raised therein. (See FAP at 5-6.) Petitioner was advised of the

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requirement to exhaust state remedies prior to bringing a habeas petition in federal court

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and ordered to demonstrate that his claims were exhausted or dismiss his case.

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On June 9, 2017, after Petitioner failed to respond to the OSC in a timely manner, the

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Court sua sponte granted Petitioner an extension of time. The Court reminded Petitioner of

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the requirement to exhaust state remedies. The Court also explained that Petitioner should

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select one of the following options: (1) show that he has exhausted state remedies; (2) file a

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motion for stay and abeyance of this action while he exhausted state remedies; or (3)

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voluntarily dismiss the case.

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On June 21, 2017, Petitioner filed a response to the OSC. Rather than selecting one
of the options provided by the Court, Petitioner stated:

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There is no state remedies at the present time due to the personal problems coming

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from the United States dealing with the defendant Timothy Lenard. I am requesting

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that Federal Court continues to deal with all my issues. Even after I am released

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from custody to help me deal with the sheriff departments attitudes towards me over

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[unintelligible] not being owned by the United States Government.

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Petitioner's response is clearly insufficient. He has failed to show that he has exhausted

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state remedies by fairly presenting his claims to the California Supreme Court, either on

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direct appeal or on habeas review. He also has failed to file a motion for stay and abeyance

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or voluntarily dismiss his case.

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DISCUSSION

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As a matter of comity, a federal court will not entertain a habeas corpus petition

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unless the petitioner has exhausted the available state judicial remedies on every ground for

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relief presented in the petition. Rose v. Lundy, 455 U.S. 509, 518-22 (1982). Pursuant to

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28 U.S.C. § 2254(b)(1), a habeas petition brought by a person in state custody “shall not be

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granted unless it appears that – (A) the applicant has exhausted the remedies available in

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the courts 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 to protect the rights of the

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applicant.” Under the total exhaustion rule, if even one of the claims being alleged by a

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habeas petitioner is unexhausted, the petition must be dismissed. See Rose, 455 U.S. at

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522; see also Coleman v. Thompson, 501 U.S. 722, 731 (1991), modified by Martinez v.

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Ryan, 566 U.S. 1 (2012); Castille v. Peoples, 489 U.S. 346, 349 (1989). The Ninth Circuit

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has held that a federal court may raise the failure to exhaust issue sua sponte. See Stone

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v. City & Cnty. of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992) (as amended).

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Exhaustion requires that the petitioner's claims be fairly presented to the state courts
and be disposed of on the merits by the highest court of the state. James v. Borg, 24 F.3d

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20, 24 (9th Cir. 1994); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979); see also

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Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). A claim has not been fairly

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presented to a state court unless the petitioner has described both the operative facts and

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the federal legal theory on which the claim is based. Duncan v. Henry, 513 U.S. 364,

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365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-78 (1971); Greenway v.

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Schriro, 653 F.3d 790, 801 (9th Cir. 2011); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir.

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1996). Petitioner has the burden of demonstrating that he has exhausted his available state

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remedies. See, e.g., Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972) (per curiam).

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However, the Ninth Circuit has held that, for purposes of exhaustion, pro se petitions are

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held to a more lenient standard than counseled petitions. Sanders v. Ryder, 342 F.3d 991,

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999 (9th Cir. 2003); Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003) (en banc).

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Here, it appears from the face of the FAP that Petitioner did not exhaust his state

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remedies with respect to any of his grounds for relief. Petitioner did not list any California

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Supreme Court filings on the habeas petition form. Indeed, in response to the question on

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the form asking whether he sought review in the California Supreme Court, Petitioner

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checked the “No” box. (FAP at 5.) Petitioner did not check any boxes or provide any

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information in response to the questions on the form asking whether he has filed any other

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petitions, applications, or motions with respect to his conviction, commitment, or any other

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issue. (FAP at 6.) In addition, based on the Court's review of the California Appellate
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Courts website, it appears that Petitioner has not filed a petition for review or habeas

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petition with the California Court of Appeal or California Supreme Court.1

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As such, Petitioner has not exhausted any of the grounds for relief in his FAP.

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If it were clear that the California Supreme Court would hold that Petitioner's claims were

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procedurally barred under state law, then the exhaustion requirement would be satisfied.

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See Castille, 489 U.S. at 351-52; Johnson, 88 F.3d at 831. Here, however, it is not clear

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that the California Supreme Court will hold that Petitioner's claims are procedurally barred

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under state law. See, e.g., In re Harris, 5 Cal.4th 813, 824 (1993) (granting habeas relief

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where petitioner claimed sentencing error, even though the alleged sentencing error was

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raised and rejected on direct appeal); People v. Sorensen, 111 Cal. App. 2d 404, 405

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(1952) (noting that claims that fundamental constitutional rights have been violated may be

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raised by state habeas petition). The Court therefore concludes that this is not an

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appropriate case for invocation of either “exception” cited above to the requirement that a

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petitioner's federal claims must first be fairly presented to, and disposed of on the merits by,

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the state's highest court.

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Additionally, although the Court provided Petitioner an opportunity to file a request for

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a stay under Rhines v. Weber, 544 U.S. 269 (2005), and/or Kelly v. Small, 315 F.3d 1063

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(9th Cir. 2003) (as amended), overruled on other grounds by Robbins v. Carey, 481 F.3d

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1143 (9th Cir. 2007), he has not done so.

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Accordingly, because the claims in the Petition are unexhausted, dismissal without
prejudice is appropriate. See Rose, 455 U.S. at 522; Castille, 489 U.S. at 349.

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CERTIFICATE OF APPEALABILITY

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Pursuant to Rule 11 of the Rules Governing Section 2254 cases, the Court “must

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issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant.”

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See appellatecases.courtinfo.ca.gov.

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The Court has found that this action should be dismissed without prejudice. For the

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reasons stated above, the Court concludes that Petitioner has not made a substantial

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showing of the denial of a constitutional right, as is required to support the issuance of a

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certificate of appealability. See 28 U.S.C. § 2253(c)(2).

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ORDER
IT IS THEREFORE ORDERED that this action is dismissed without prejudice for
failure to exhaust state remedies.
IT IS FURTHER ORDERED that a certificate of appealability is denied.

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/s/
FERNANDO M. OLGUIN
UNITED STATES DISTRICT JUDGE

DATED: July 20, 2017

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