John Smith v. Unknown

Filing 9

ORDER TO SHOW CAUSE RE: DISMISSAL OF HABEAS PETITION AS UNEXHAUSTED AND/OR FOR FAILURE TO STATE A CLAIM by Magistrate Judge Paul L. Abrams. ON OR BEFORE JUNE 30, 2017, petitioner is ordered to show cause why this action should not be dismissed as unexhausted and/or for failure to state a claim. SEE ORDER FOR DETAILS. (Attachments: # 1 blank state habeas petition with request to proceed in forma pauperis, # 2 blank notice of dismissal form, # 3 REJECTED and RETURNED DOCUMENTS) (ch)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 JOHN SMITH, 13 14 15 16 17 Petitioner, v. UNKNOWN, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) No. CV 17-2508-BRO (PLA) ORDER TO SHOW CAUSE RE: DISMISSAL OF HABEAS PETITION AS UNEXHAUSTED AND/OR FOR FAILURE TO STATE A CLAIM 18 On March 31, 2017, petitioner filed a Petition for a Writ of Habeas Corpus Under 28 U.S.C. 19 § 2241 (“Petition” or “Pet.”). On April 7, 2017, after reviewing the Petition, the Court issued an 20 Order informing petitioner that because he is challenging his state court order of civil commitment 21 at Atascadero State Hospital, that challenge must be brought pursuant to 28 U.S.C. § 2254, not 22 § 2241. (ECF No. 3). The Court ordered petitioner to file an Amended Petition by April 28, 2017, 23 using the proper § 2254 form petition, which was provided to petitioner along with the April 7, 24 2017, Order. (Id.). The Court also informed petitioner that in completing the provided form he 25 must: (1) demonstrate to the Court that he has exhausted his claim(s); and (2) name the proper 26 respondent, i.e., the state officer having custody of petitioner. 27 28 1 On April 21, 2017, petitioner submitted another form petition to the Court, dated April 17, 2 2017. However, rather than using the form the Court had provided him with its April 7, 2017, 3 Order, petitioner instead used a state court habeas form. In addition, he still did not indicate the 4 respondent’s name. As the April 21, 2017, submission did not name the proper respondent for 5 a habeas proceeding, this Court lacked jurisdiction to entertain the action and, on April 28, 2017, 6 the Court rejected the submission and ordered it returned to petitioner along with the April 28, 7 2017, Order. (ECF No. 4). 8 Also in the April 28, 2017, Order, the Court informed petitioner that it would give him a “final 9 opportunity” to file an Amended Petition using the proper form for an action brought pursuant to 10 28 U.S.C. § 2254 in this federal Court. (Id.). The Court ordered petitioner to file, no later than May 11 31, 2017, an Amended Petition using the proper § 2254 form petition (which was again included 12 with the April 28, 2017, Order). Petitioner was told that the Amended Petition should use the same 13 case number (CV 17-2508-BRO (PLA)), be clearly labeled “First Amended Petition,” and be filled 14 out completely, including with the respondent’s name. As noted in the Court’s April 7, 2017, 15 Order, petitioner was told that he must also show that his claim(s) have been fairly presented to 16 the California Supreme Court prior to presenting them to the federal courts. Alternatively, 17 petitioner was informed that if he agreed the action should be dismissed without prejudice as 18 unexhausted, he could file a notice of voluntary dismissal pursuant to Federal Rule of Civil 19 Procedure 41(a)(1), and petitioner was provided with a blank dismissal form. 20 On May 19, 2017, the Court received a number of submissions from petitioner: 21 (1) Without explanation, petitioner re-submitted the April 21, 2017, petition that the Court 22 had returned to him on April 28, 2017. That document is not to be filed, but is instead again 23 rejected and ordered returned to petitioner along with this Order. Petitioner should keep this 24 document for his records and must not return it to this Court. 25 (2) Petitioner submitted a handwritten note (“Note”). In the Note, petitioner stated that he 26 “would like to dis[]miss” his “last habeas corpus sent in ‘march.’” Attached to the Note was the 27 form previously provided to petitioner by the Court for a Rule 41 dismissal (“Dismissal Form”). On 28 2 1 the Dismissal Form, petitioner indicated that he wanted to dismiss the action “John Smith v. 2 Courts” in its entirety. Although the Dismissal Form was dated May 16, 2017, petitioner did not 3 include a case number or a signature. The only document submitted by petitioner in March was 4 the original Petition submitted pursuant to § 2241 that the Court gave petitioner leave to amend 5 to include information regarding exhaustion of his claims. It is unclear, therefore (especially in light 6 of the third point below) whether petitioner actually intends to dismiss this action, or whether he 7 misunderstood the Court’s April 28, 2017, Order indicating that if he agreed his claim was not 8 exhausted, he could file a Dismissal Form and return to the state courts to exhaust his claim. In 9 an abundance of caution, therefore, no action will be taken on petitioner’s Dismissal Form at this 10 time, and the Court will instead wait for petitioner’s response to this Order to Show Cause. 11 (3) Petitioner submitted an Amended Petition pursuant to 28 U.S.C. § 2254 (“Amended 12 Petition” or “Am. Pet.”). The Amended Petition named the “San Fernando Valley Court” as the 13 respondent, did not include a case number and was undated. Attached to the Amended Petition 14 was the Court’s April 28, 2017, Order, with various portions underlined. In the Amended Petition, 15 petitioner inconsistently indicates that his date of conviction was October 5, 2016, pursuant to a 16 plea of nolo contendere, and that he had a jury trial. He states that he did not appeal to the state 17 courts because he “kn[e]w nothing about that.” (Am. Pet. at 3). The Amended Petition raises one 18 ground for relief, which appears to state as follows: “I was misrepresented I had a speedy trial 19 without me picking my jury.” (Am. Pet. at 5). Petitioner indicates that he did not raise this claim 20 on appeal to the state courts, or in a habeas petition to the California Supreme Court. (Id.). 21 (4) Petitioner submitted a Declaration in Support of Request to Proceed In Forma Pauperis, 22 along with a copy of his Trust Account report, certified by an officer at Atascadero State Hospital. 23 24 25 A. FAILURE TO STATE A CLAIM 26 As previously noted, the Amended Petition raises one ground for relief in which petitioner 27 alleges “I was misrepresented I had a speedy trial without me picking my jury.” (Id.). This claim 28 3 1 is ambiguous at best. For instance, among other things, it could be interpreted as a speedy trial 2 violation, or an ineffective assistance of counsel claim, or a claim that petitioner’s plea was not 3 knowing and voluntary. 4 Under 28 U.S.C. § 2254(a), petitioner may only seek habeas relief if he is contending that 5 he is in custody in violation of the Constitution or laws or treaties of the United States. See Estelle 6 v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) (“In conducting habeas 7 review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, 8 or treaties of the United States.”); Smith v. Phillips, 455 U.S. 209, 221, 102 S. Ct. 940, 71 L. Ed. 9 2d 78 (1982) (“A federally issued writ of habeas corpus, of course, reaches only convictions 10 obtained in violation of some provision of the United States Constitution.”). Rule 2 of the Rules 11 Governing Section 2254 Cases in the United States District Courts (“Habeas Rule 2”) requires that 12 a petitioner specify all the grounds for habeas relief as well as the facts supporting each ground. 13 Habeas Rule 2(c). A petitioner is required to set forth a “detailed statement” explaining his habeas 14 claims. See Mayle v. Felix, 545 U.S. 644, 649, 125 S. Ct. 2562, 162 L. Ed. 2d 582 (2005) 15 (“[Habeas] Rule 2(c) . . . requires a . . . detailed statement. The habeas rule instructs the 16 petitioner to ‘specify all the grounds for relief available to [him]’ and to ‘state the facts supporting 17 each ground.’”). 18 Here, the Amended Petition does not clearly set forth the ground for relief petitioner 19 purports to be bringing, and the Court is unable to discern from the way petitioner presented his 20 ground for relief what federal constitutional claim(s) (if any) petitioner is alleging. Thus, the Court 21 is left to speculate as to the ground(s) for relief that petitioner is seeking to raise herein, and has 22 no facts or arguments to support that ground. In short, in its present format, the Amended Petition 23 does not provide either a clear legal basis for habeas relief or specific supporting facts for 24 petitioner’s alleged claim. For these reasons, the Court concludes that the Amended Petition does 25 not clearly state a claim pursuant to 28 U.S.C. § 2254(a), and does not contain any claim that 26 meets the standard set forth in Habeas Rule 2(c) requiring a statement of specific grounds and 27 facts. 28 / 4 1 B. EXHAUSTION 2 As a matter of comity, a federal court will not entertain a habeas corpus petition unless the 3 petitioner has exhausted the available state judicial remedies on every ground presented in the 4 petition. Rose v. Lundy, 455 U.S. 509, 518-22, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). The 5 habeas statute explicitly provides that a habeas petition brought by a person in state custody “shall 6 not be granted unless it appears that -- (A) the applicant has exhausted the remedies available 7 in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) 8 circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 9 U.S.C. § 2254(b)(1). Moreover, if the exhaustion requirement is to be waived, it must be waived 10 expressly by the state, through counsel. See 28 U.S.C. § 2254(b)(3). 11 Exhaustion requires that petitioner’s contentions be fairly presented to the state supreme 12 court even if that court’s review is discretionary. O’Sullivan v. Boerckel, 526 U.S. 838, 845-47, 119 13 S. Ct. 1728, 144 L. Ed. 2d 1 (1999); James v. Giles, 221 F.3d 1074, 1077, n.3 (9th Cir. 2000). 14 Petitioner must give the state courts “one full opportunity to resolve any constitutional issues by 15 invoking one complete round of the State’s established appellate review process” in order to 16 exhaust his claims. O’Sullivan, 526 U.S. at 845. A claim has not been fairly presented unless the 17 prisoner has described in the state court proceedings both the operative facts and the federal legal 18 theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S. Ct. 887, 19 130 L. Ed. 2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-78, 92 S. Ct. 509, 30 L. Ed. 2d 438 20 (1971); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996); Bland v. Cal. Dep’t of Corr., 20 F.3d 21 1469, 1473 (9th Cir. 1994), overruled on other grounds by Schell v. Witek, 218 F.3d 1017 (9th Cir. 22 2000). State remedies are not exhausted if an appeal or petition for post-conviction relief is still 23 pending in state court. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (if petitioner has 24 a pending state appeal, he “must await the outcome of his appeal before his state remedies are 25 exhausted”); Schnepp v. Oregon, 333 F.2d 288, 288 (9th Cir. 1964) (per curiam) (state remedies 26 are unexhausted where a petition for post-conviction relief is still pending in state court). Petitioner 27 has the burden of demonstrating that he has exhausted available state remedies. See, e.g., 28 Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). 5 1 Here, petitioner admits that he has not exhausted his state judicial remedies in connection 2 with his claim in this matter. (See Am. Pet. at 3, 5). As the Amended Petition appears to be 3 unexhausted, it is subject to being dismissed without prejudice. Greenawalt v. Stewart, 105 F.3d 4 1268, 1271, 1273-75 (9th Cir. 1997). 5 6 C. PROPER RESPONDENT 7 A petitioner seeking habeas corpus relief must name the state officer having custody of him 8 as the respondent to the Petition. See Rule 2(a), Rules Governing Section 2254 Cases in the 9 United States District Courts. This person typically is the immediate custodian of the facility in 10 which the petitioner is incarcerated.1 Stanley v. Cal. Sup. Ct., 21 F.3d 359, 360 (9th Cir. 1994); 11 Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam) (explaining that a 12 federal habeas petitioner’s immediate custodian is the only party that can actually produce “the 13 body” of the petitioner). Here, petitioner names the “San Fernando Valley Court” as respondent. 14 Failure to name the correct respondent deprives federal courts of personal jurisdiction. Stanley, 15 21 F.3d at 360; Dunne, 875 F.2d at 249. 16 17 D. ORDER 18 Based on the foregoing, on or before June 30, 2017, petitioner is ordered to show cause 19 why this action should not be dismissed as unexhausted and/or for failure to state a claim. To 20 avoid dismissal, on or before June 30, 2017, petitioner must file a response to this Order detailing 21 why he believes the action should go forward under § 2254, and must also demonstrate that he 22 has a claim (or claims) upon which habeas relief may be granted by indicating (1) the specific 23 ground(s) for relief and supporting facts on which he seeks habeas relief, and (2) clearly indicating 24 that his claim (or claims) have been fairly presented to the California Supreme Court. 25 The filing by petitioner of a Second Amended Petition -- on the Central District of 26 California’s form Petition for Writ of Habeas Corpus pursuant to § 2254 -- on or before June 30, 27 28 1 In this case, the proper respondent would be the Director of Atascadero State Hospital. 6 1 2017 -- containing the required information as detailed above, shall be deemed compliance with 2 this Order. A Second Amended Petition should reflect the same case number (CV 17-2508-BRO 3 (PLA)), be clearly labeled “Second Amended Petition,” and be filled out completely. In ¶ 8 of the 4 Second Amended Petition, petitioner should specify separately and concisely each federal 5 constitutional claim that he seeks to raise herein and answer all of the questions pertaining to each 6 claim, including whether it has been raised in the California Supreme Court. The Court Clerk is 7 directed to send petitioner a blank copy the Central District’s form Petition for Writ of Habeas 8 Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. 9 If instead petitioner intended to voluntarily dismiss this action without prejudice when 10 he submitted his Dismissal Form, or now agrees that this action should be dismissed without 11 prejudice as unexhausted and/or for failure to state a claim, on or before June 30, 2017, he may 12 re-submit a fully completed Notice of Voluntary Dismissal pursuant to Federal Rule of Civil 13 Procedure 41(a)(1) (“Rule 41”). He may then return to the state courts to exhaust whatever 14 claim(s) he may wish to later bring in this Court. The Court clerk is directed to send petitioner 15 another copy of the blank Central District form titled “Notice of Dismissal Pursuant to Federal 16 Rules of Civil Procedure 41(a) or (c)” along with this Order to Show Cause. If petitioner chooses 17 this option, he (1) must not file any other document with his Notice of Voluntary Dismissal; and (2) 18 must be mindful of the one-year limitation period under the Ant-Terrorism and Effective Death 19 Penalty Act of 1996 (“AEDPA”). 20 Petitioner is advised that his failure to timely file a response to this Order, as set 21 forth herein, will result in the action being dismissed as unexhausted, and/or for failure to 22 state a claim, and/or for failure to prosecute and follow Court orders. Petitioner is also 23 advised that the filing of a petition for federal habeas corpus relief does not toll the 24 AEDPA’s one-year statute of limitations. Duncan v. Walker, 533 U.S. 167, 172, 121 S. Ct. 25 2120, 150 L. Ed. 2d 251 (2001). 26 27 DATED: May 30, 2017 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 28 7

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