Jeffrey A. Knapp v. L.A. County Sheriffs Dept.

Filing 11

ORDER TO SHOW CAUSE RE: DISMISSAL OF HABEAS PETITION FOR FAILURE TO STATE A CLAIM AND/OR AS UNEXHAUSTED by Magistrate Judge Paul L. Abrams. On or before July 28, 2017, petitioner is ordered to show cause why this action should not be dismissed for failure to state a claim and/or as unexhausted. SEE ORDER FOR DETAILS. (Attachments: # 1 blank Notice of Dismissal, # 2 blank State Habeas Petition) (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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JEFFREY A. KNAPP,

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Petitioner,

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v.

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L.A. COUNTY SHERIFF’S DEPT.,

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Respondent.

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No. CV 17-3859-JAK (PLA)
ORDER TO SHOW CAUSE RE: DISMISSAL
OF HABEAS PETITION FOR FAILURE TO
STATE A CLAIM AND/OR AS
UNEXHAUSTED

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On May 23, 2017, petitioner filed a Petition for a Writ of Habeas Corpus Under 28 U.S.C.

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§ 2254 (“Petition” or “Pet.”), challenging his June 17, 2016, conviction for receiving stolen property

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(Cal. Penal Code § 496), in the Antelope Valley courthouse of the Los Angeles County Superior

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Court. (ECF No. 1). In his sole ground for relief, petitioner alleged that the trial court gave him

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an illegal one-year prison prior enhancement pursuant to California Penal Code section 667.5(b).

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(Pet. at 2). On May 31, 2017, after reviewing the Petition, the Court ordered petitioner to file an

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Amended Petition by June 30, 2017, using the proper Central District of California § 2254 form

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petition, which was provided to petitioner along with the May 31, 2017, Order. (ECF No. 3). The

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Court also informed petitioner that in completing the provided form he must demonstrate to the

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Court that he has exhausted his claim(s).

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On June 19, 2017, petitioner submitted his First Amended Petition (“FAP”) to the Court,

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using the form supplied to him. The Court has reviewed the FAP and determined that it is subject

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to dismissal for failure to state a claim, failure to exhaust, and/or failure to name the proper

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respondent.

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A.

FAILURE TO STATE A CLAIM

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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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The FAP raises one ground for relief in which petitioner alleges “[Antelope Valley] Court

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would not give me any Court transcri[p]ts.” (Pet. at 5). He then states as supporting facts the

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following: “How could I file and ap[p]eal when I have no paperwork. I also wrote State Bar Ass.

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to have my attorney . . . to send my paperwork. No luck. They are deep trouble if you w[]ere to

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see what went on.” (FAP at 5). This “claim,” which is ambiguous at best, does not clearly set forth

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the ground for relief petitioner purports to be bringing, and the Court is unable to discern from the

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way petitioner presented his ground for relief what federal constitutional claim(s) (if any) petitioner

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is alleging or intending to bring in this action. Additionally, the Court also notes that the sentencing

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error claim raised by petitioner in the original Petition is not included in the FAP, and the Court is

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left to speculate whether petitioner intended to delete that claim when he filed his FAP.

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In short, in its present format, the FAP does not provide either a clear legal basis for habeas

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relief or specific supporting facts for petitioner’s alleged claim(s). For these reasons, the Court

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

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not contain any claim that meets the standard set forth in Habeas Rule 2(c) requiring a statement

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of specific grounds and 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, with regard to his “claim” that the Los Angeles County Superior Court in Antelope

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Valley refused to provide him with his court transcripts, although petitioner states that he raised

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this “claim” on direct appeal to the California Court of Appeal and the California Supreme Court,

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as well as in a habeas petition to the California Supreme Court, the exhibits attached to the FAP

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indicate that petitioner merely raised this issue in letters to the superior court and the California

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Supreme Court and not in a formal motion or petition. (FAP Exs. F, H). As the FAP, therefore,

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appears to be unexhausted, it is subject to being dismissed without prejudice. Greenawalt v.

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Stewart, 105 F.3d 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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In this case, the proper respondent would be the Los Angeles County Sheriff.
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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 “Los Angeles County Sheriff’s Department”

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as respondent. Failure to name the correct respondent deprives federal courts of personal

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jurisdiction. Stanley, 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 July 28, 2017, petitioner is ordered to show cause

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

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avoid dismissal, on or before July 28, 2017, petitioner must file a response to this Order

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demonstrating that he has a claim (or claims) upon which habeas relief may be granted by

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indicating (1) the specific ground(s) for relief and supporting facts on which he seeks habeas relief,

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and (2) clearly indicating that his claim (or claims) have been fairly presented to the California

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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 July 28,

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2017, containing the required information as detailed above, shall be deemed compliance with this

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Order. A Second Amended Petition should reflect the same case number (CV 17-3859-JAK

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

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of the Second Amended Petition (at page 5), petitioner should specify separately and concisely

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

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pertaining to each claim, including whether it has been raised in the California Supreme Court.

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That is, all claims that petitioner intends to bring before this Court must be in one document.

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Petitioner must also name the proper respondent. The Court Clerk is directed to send petitioner

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a blank copy the Central District’s form Petition for Writ of Habeas Corpus by a Person in State

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Custody pursuant to 28 U.S.C. § 2254.

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If instead petitioner agrees that this action should be dismissed without prejudice for failure

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to state a claim and/or as unexhausted, on or before July 28, 2017, he may submit a fully

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completed Notice of Voluntary Dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)

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(“Rule 41”). He may then return to the state courts to exhaust whatever claim(s) he may wish to

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later bring in this Court. The Court clerk is directed to send petitioner a copy of the blank Central

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District form titled “Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or (c)”

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along with this Order to Show Cause. If petitioner chooses this option, he (1) must not file any

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other document with his Notice of Voluntary Dismissal; and (2) must be mindful of the one-year

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limitation period under the Anti-Terrorism and Effective Death 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 for failure to state a claim and/or as

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unexhausted, 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: June 26, 2017
PAUL L. ABRAMS
UNITED STATES MAGISTRATE JUDGE

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