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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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JOHN SMITH,

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Petitioner,
v.
UNKNOWN, Warden,
Respondent.

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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

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On March 31, 2017, petitioner filed a Petition for a Writ of Habeas Corpus Under 28 U.S.C.

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§ 2241 (“Petition” or “Pet.”). On April 7, 2017, after reviewing the Petition, the Court issued an

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Order informing petitioner that because he is challenging his state court order of civil commitment

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at Atascadero State Hospital, that challenge must be brought pursuant to 28 U.S.C. § 2254, not

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§ 2241. (ECF No. 3). The Court ordered petitioner to file an Amended Petition by April 28, 2017,

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using the proper § 2254 form petition, which was provided to petitioner along with the April 7,

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2017, Order. (Id.). The Court also informed petitioner that in completing the provided form he

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must: (1) demonstrate to the Court that he has exhausted his claim(s); and (2) name the proper

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respondent, i.e., the state officer having custody of petitioner.

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On April 21, 2017, petitioner submitted another form petition to the Court, dated April 17,

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2017. However, rather than using the form the Court had provided him with its April 7, 2017,

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Order, petitioner instead used a state court habeas form. In addition, he still did not indicate the

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respondent’s name. As the April 21, 2017, submission did not name the proper respondent for

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a habeas proceeding, this Court lacked jurisdiction to entertain the action and, on April 28, 2017,

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the Court rejected the submission and ordered it returned to petitioner along with the April 28,

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2017, Order. (ECF No. 4).

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Also in the April 28, 2017, Order, the Court informed petitioner that it would give him a “final

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opportunity” to file an Amended Petition using the proper form for an action brought pursuant to

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28 U.S.C. § 2254 in this federal Court. (Id.). The Court ordered petitioner to file, no later than May

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31, 2017, an Amended Petition using the proper § 2254 form petition (which was again included

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with the April 28, 2017, Order). Petitioner was told that the Amended Petition should use the same

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case number (CV 17-2508-BRO (PLA)), be clearly labeled “First Amended Petition,” and be filled

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out completely, including with the respondent’s name. As noted in the Court’s April 7, 2017,

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Order, petitioner was told that he must also show that his claim(s) have been fairly presented to

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the California Supreme Court prior to presenting them to the federal courts. Alternatively,

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petitioner was informed that if he agreed the action should be dismissed without prejudice as

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unexhausted, he could file a notice of voluntary dismissal pursuant to Federal Rule of Civil

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Procedure 41(a)(1), and petitioner was provided with a blank dismissal form.

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On May 19, 2017, the Court received a number of submissions from petitioner:

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(1) Without explanation, petitioner re-submitted the April 21, 2017, petition that the Court

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had returned to him on April 28, 2017. That document is not to be filed, but is instead again

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rejected and ordered returned to petitioner along with this Order. Petitioner should keep this

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document for his records and must not return it to this Court.

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(2) Petitioner submitted a handwritten note (“Note”). In the Note, petitioner stated that he

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“would like to dis[]miss” his “last habeas corpus sent in ‘march.’” Attached to the Note was the

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form previously provided to petitioner by the Court for a Rule 41 dismissal (“Dismissal Form”). On

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the Dismissal Form, petitioner indicated that he wanted to dismiss the action “John Smith v.

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Courts” in its entirety. Although the Dismissal Form was dated May 16, 2017, petitioner did not

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include a case number or a signature. The only document submitted by petitioner in March was

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the original Petition submitted pursuant to § 2241 that the Court gave petitioner leave to amend

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to include information regarding exhaustion of his claims. It is unclear, therefore (especially in light

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of the third point below) whether petitioner actually intends to dismiss this action, or whether he

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misunderstood the Court’s April 28, 2017, Order indicating that if he agreed his claim was not

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exhausted, he could file a Dismissal Form and return to the state courts to exhaust his claim. In

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an abundance of caution, therefore, no action will be taken on petitioner’s Dismissal Form at this

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time, and the Court will instead wait for petitioner’s response to this Order to Show Cause.

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(3) Petitioner submitted an Amended Petition pursuant to 28 U.S.C. § 2254 (“Amended

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Petition” or “Am. Pet.”). The Amended Petition named the “San Fernando Valley Court” as the

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respondent, did not include a case number and was undated. Attached to the Amended Petition

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was the Court’s April 28, 2017, Order, with various portions underlined. In the Amended Petition,

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petitioner inconsistently indicates that his date of conviction was October 5, 2016, pursuant to a

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plea of nolo contendere, and that he had a jury trial. He states that he did not appeal to the state

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courts because he “kn[e]w nothing about that.” (Am. Pet. at 3). The Amended Petition raises one

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ground for relief, which appears to state as follows: “I was misrepresented I had a speedy trial

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without me picking my jury.” (Am. Pet. at 5). Petitioner indicates that he did not raise this claim

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on appeal to the state courts, or in a habeas petition to the California Supreme Court. (Id.).

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(4) Petitioner submitted a Declaration in Support of Request to Proceed In Forma Pauperis,

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along with a copy of his Trust Account report, certified by an officer at Atascadero State Hospital.

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A.

FAILURE TO STATE A CLAIM

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As previously noted, the Amended Petition raises one ground for relief in which petitioner

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alleges “I was misrepresented I had a speedy trial without me picking my jury.” (Id.). This claim

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is ambiguous at best. For instance, among other things, it could be interpreted as a speedy trial

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violation, or an ineffective assistance of counsel claim, or a claim that petitioner’s plea was not

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knowing and voluntary.

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Under 28 U.S.C. § 2254(a), petitioner may only seek habeas relief if he is contending that

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he is in custody in violation of the Constitution or laws or treaties of the United States. See Estelle

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v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) (“In conducting habeas

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review, a federal court is limited to deciding whether a conviction violated the Constitution, laws,

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or treaties of the United States.”); Smith v. Phillips, 455 U.S. 209, 221, 102 S. Ct. 940, 71 L. Ed.

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2d 78 (1982) (“A federally issued writ of habeas corpus, of course, reaches only convictions

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obtained in violation of some provision of the United States Constitution.”). Rule 2 of the Rules

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Governing Section 2254 Cases in the United States District Courts (“Habeas Rule 2”) requires that

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a petitioner specify all the grounds for habeas relief as well as the facts supporting each ground.

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Habeas Rule 2(c). A petitioner is required to set forth a “detailed statement” explaining his habeas

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claims. See Mayle v. Felix, 545 U.S. 644, 649, 125 S. Ct. 2562, 162 L. Ed. 2d 582 (2005)

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(“[Habeas] Rule 2(c) . . . requires a . . . detailed statement. The habeas rule instructs the

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petitioner to ‘specify all the grounds for relief available to [him]’ and to ‘state the facts supporting

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each ground.’”).

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Here, the Amended Petition does not clearly set forth the ground for relief petitioner

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purports to be bringing, and the Court is unable to discern from the way petitioner presented his

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ground for relief what federal constitutional claim(s) (if any) petitioner is alleging. Thus, the Court

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is left to speculate as to the ground(s) for relief that petitioner is seeking to raise herein, and has

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no facts or arguments to support that ground. In short, in its present format, the Amended Petition

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does not provide either a clear legal basis for habeas relief or specific supporting facts for

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petitioner’s alleged claim. For these reasons, the Court concludes that the Amended Petition does

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not clearly state a claim pursuant to 28 U.S.C. § 2254(a), and does not contain any claim that

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meets the standard set forth in Habeas Rule 2(c) requiring a statement of specific grounds and

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facts.

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B.

EXHAUSTION

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

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petitioner has exhausted the available state judicial remedies on every ground presented in the

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petition. Rose v. Lundy, 455 U.S. 509, 518-22, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). The

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habeas statute explicitly provides that a habeas petition brought by a person in state custody “shall

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not be granted unless it appears that -- (A) the applicant has exhausted the remedies available

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in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii)

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circumstances exist that render such process ineffective to protect the rights of the applicant.” 28

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U.S.C. § 2254(b)(1). Moreover, if the exhaustion requirement is to be waived, it must be waived

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expressly by the state, through counsel. See 28 U.S.C. § 2254(b)(3).

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Exhaustion requires that petitioner’s contentions be fairly presented to the state supreme

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court even if that court’s review is discretionary. O’Sullivan v. Boerckel, 526 U.S. 838, 845-47, 119

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S. Ct. 1728, 144 L. Ed. 2d 1 (1999); James v. Giles, 221 F.3d 1074, 1077, n.3 (9th Cir. 2000).

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Petitioner must give the state courts “one full opportunity to resolve any constitutional issues by

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invoking one complete round of the State’s established appellate review process” in order to

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exhaust his claims. O’Sullivan, 526 U.S. at 845. A claim has not been fairly presented unless the

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prisoner has described in the state court proceedings both the operative facts and the federal legal

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theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S. Ct. 887,

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130 L. Ed. 2d 865 (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); Bland v. Cal. Dep’t of Corr., 20 F.3d

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1469, 1473 (9th Cir. 1994), overruled on other grounds by Schell v. Witek, 218 F.3d 1017 (9th Cir.

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2000). State remedies are not exhausted if an appeal or petition for post-conviction relief is still

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pending in state court. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (if petitioner has

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a pending state appeal, he “must await the outcome of his appeal before his state remedies are

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exhausted”); Schnepp v. Oregon, 333 F.2d 288, 288 (9th Cir. 1964) (per curiam) (state remedies

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are unexhausted where a petition for post-conviction relief is still pending in state court). Petitioner

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has the burden of demonstrating that he has exhausted available state remedies. See, e.g.,

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Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982).
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Here, petitioner admits that he has not exhausted his state judicial remedies in connection

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with his claim in this matter. (See Am. Pet. at 3, 5). As the Amended Petition appears to be

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unexhausted, it is subject to being dismissed without prejudice. Greenawalt v. Stewart, 105 F.3d

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1268, 1271, 1273-75 (9th Cir. 1997).

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C.

PROPER RESPONDENT

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A petitioner seeking habeas corpus relief must name the state officer having custody of him

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as the respondent to the Petition. See Rule 2(a), Rules Governing Section 2254 Cases in the

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United States District Courts. This person typically is the immediate custodian of the facility in

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which the petitioner is incarcerated.1 Stanley v. Cal. Sup. Ct., 21 F.3d 359, 360 (9th Cir. 1994);

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Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam) (explaining that a

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federal habeas petitioner’s immediate custodian is the only party that can actually produce “the

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body” of the petitioner). Here, petitioner names the “San Fernando Valley Court” as respondent.

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Failure to name the correct respondent deprives federal courts of personal jurisdiction. Stanley,

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21 F.3d at 360; Dunne, 875 F.2d at 249.

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D.

ORDER

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Based on the foregoing, on or before June 30, 2017, petitioner is ordered to show cause

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why this action should not be dismissed as unexhausted and/or for failure to state a claim. To

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avoid dismissal, on or before June 30, 2017, petitioner must file a response to this Order detailing

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why he believes the action should go forward under § 2254, and must also demonstrate that he

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has a claim (or claims) upon which habeas relief may be granted by indicating (1) the specific

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ground(s) for relief and supporting facts on which he seeks habeas relief, and (2) clearly indicating

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that his claim (or claims) have been fairly presented to the California Supreme Court.

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The filing by petitioner of a Second Amended Petition -- on the Central District of

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California’s form Petition for Writ of Habeas Corpus pursuant to § 2254 -- on or before June 30,

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In this case, the proper respondent would be the Director of Atascadero State Hospital.
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2017 -- containing the required information as detailed above, shall be deemed compliance with

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this Order. A Second Amended Petition should reflect the same case number (CV 17-2508-BRO

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(PLA)), be clearly labeled “Second Amended Petition,” and be filled out completely. In ¶ 8 of the

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Second Amended Petition, petitioner should specify separately and concisely each federal

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constitutional claim that he seeks to raise herein and answer all of the questions pertaining to each

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claim, including whether it has been raised in the California Supreme Court. The Court Clerk is

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directed to send petitioner a blank copy the Central District’s form Petition for Writ of Habeas

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Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254.

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If instead petitioner intended to voluntarily dismiss this action without prejudice when

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he submitted his Dismissal Form, or now agrees that this action should be dismissed without

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prejudice as unexhausted and/or for failure to state a claim, on or before June 30, 2017, he may

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re-submit a fully completed Notice of Voluntary Dismissal pursuant to Federal Rule of Civil

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Procedure 41(a)(1) (“Rule 41”). He may then return to the state courts to exhaust whatever

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claim(s) he may wish to later bring in this Court. The Court clerk is directed to send petitioner

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another copy of the blank Central District form titled “Notice of Dismissal Pursuant to Federal

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Rules of Civil Procedure 41(a) or (c)” along with this Order to Show Cause. If petitioner chooses

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this option, he (1) must not file any other document with his Notice of Voluntary Dismissal; and (2)

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must be mindful of the one-year limitation period under the Ant-Terrorism and Effective Death

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Penalty Act of 1996 (“AEDPA”).

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Petitioner is advised that his failure to timely file a response to this Order, as set

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forth herein, will result in the action being dismissed as unexhausted, and/or for failure to

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state a claim, and/or for failure to prosecute and follow Court orders. Petitioner is also

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advised that the filing of a petition for federal habeas corpus relief does not toll the

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AEDPA’s one-year statute of limitations. Duncan v. Walker, 533 U.S. 167, 172, 121 S. Ct.

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2120, 150 L. Ed. 2d 251 (2001).

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DATED: May 30, 2017
PAUL L. ABRAMS
UNITED STATES MAGISTRATE JUDGE

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