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