Carmen Montelongo Montenegro v. D. G. Adams

Filing 12

ORDER DISMISSING ACTION WITHOUT PREJUDICE by Judge Stephen V. Wilson. The unexhausted petition is subject to summary dismissal. 28 U.S.C. §§ 2243, 2254(b); Local Civil Rule 72-3.2. The action is therefore DISMISSED without prejudice. (See Minute Order for further details) Case Terminated. Made JS-6. (vm)

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1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 13 CARMEN MONTENEGRO, Petitioner, 14 ORDER DISMISSING ACTION WITHOUT PREJUDICE v. 15 16 Case No. ED CV 16-2273 SVW (MRW) D.J. ADAMS, Warden, Respondent. 17 18 The Court summarily dismisses this unexhausted habeas action pursuant to 19 20 28 U.S.C. §§ 2243 and 2254(b). *** 21 1. 22 This is a habeas action involving a state prisoner. Petitioner was 23 convicted of murder at jury trial in 2014. She received a prison term of 25 years to 24 life. 25 2. The state appellate court affirmed her conviction in May 2016. The 26 gist of her appellate claims involved the sufficiency of the evidence at trial and 27 various jury instruction issues. 28 1 3. Petitioner commenced this federal action in October 2016. Petitioner 2 attached a copy of her state appellate brief to her petition, suggesting that she seeks 3 federal habeas review of the same claims asserted on direct appeal. However, 4 Petitioner admits that she never presented either a petition for review or habeas 5 corpus action in the state supreme court. (Petition at 3.) 6 4. Magistrate Judge Wilner screened Petitioner’s current petition. 7 (Docket # 4.) The magistrate judge informed Petitioner of the requirement under 8 AEDPA to exhaust her claims in the state supreme court before seeking relief in 9 federal court. Judge Wilner directed Petitioner to submit a statement explaining 10 whether she: (a) intended to pursue habeas relief in state court; or (b) was entitled 11 to a stay of the federal action. If not, the magistrate judge warned Petitioner that 12 his action was subject to dismissal. 13 5. In response, Petitioner filed several incomplete and unintelligible 14 statements. (Docket # 7, 8, 10.) These submissions alluded to Petitioner’s 15 physical and mental health conditions, and contained a patently inadequate request 16 for a Rhines stay of the case. Petitioner also requested a lengthy extension of time 17 to present more prison medical records to the Court. 18 6. Judge Wilner issued orders explaining that these responses did not 19 address the Court’s concerns regarding whether Petitioner complied with 20 AEDPA’s exhaustion requirement. (Docket # 9, 11.) The Court set a further 21 deadline in mid-February 2017 by which Petitioner was required to demonstrate 22 that her action could plausibly remain in federal court. Petitioner failed to file any 23 response to the Court’s order. 24 25 *** 7. If it “appears from the application that the applicant or person 26 detained is not entitled” to habeas relief, a court may dismiss a habeas action 27 without ordering service on the responding party. 28 U.S.C. § 2243; see 28 2 1 also Rule 4 of Rules Governing Section 2254 Cases in United States District 2 Courts (petition may be summarily dismissed if petitioner plainly not entitled to 3 relief); Local Civil Rule 72-3.2 (magistrate judge may submit proposed order for 4 summary dismissal to district judge “if it plainly appears from the face of the 5 petition [ ] that the petitioner is not entitled to relief”). 6 8. Under federal law, a prisoner must exhaust (that is, present) her or his 7 claims in the California Supreme Court before seeking relief in federal court. 8 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509 (1982). This Court can 9 only issue a writ of habeas corpus on a showing that the state’s highest court issued 10 a decision that was contrary to or an unreasonable application of clearly 11 established federal law. 28 U.S.C. § 2254(d)(1). 12 9. According to the petition, Petitioner does not allege that she exhausted 13 any constitutional claim by presenting it to the state supreme court before filing in 14 federal court. As a result, Petitioner’s pleading is defective and subject to 15 dismissal on its face. 16 10. Moreover, when the magistrate judge gave Petitioner an opportunity 17 to cure the apparent defect with the petition or to submit a valid request for a stay, 18 Petitioner failed to comply with the Court’s direction. In the face of a second order 19 from the magistrate judge regarding the status of the action, Petitioner failed to file 20 any response. (Docket # 11.) 21 22 23 24 25 26 27 28 3 1 11. The unexhausted petition is subject to summary dismissal. 28 U.S.C. 2 §§ 2243, 2254(b); Local Civil Rule 72-3.2. The action is therefore DISMISSED 3 without prejudice. 4 IT IS SO ORDERED. 5 6 Dated: March 20, 2017 7 ___________________________________ HON. STEPHEN V. WILSON UNITED STATES DISTRICT JUDGE 8 9 Presented by: 10 11 12 13 14 ____________________________________ HON. MICHAEL R. WILNER UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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