Rodriguez v. Yates

Filing 19

ORDER GRANTING 11 Respondent's Motion to Dismiss, DISMISSING Petition for Writ of Habeas Corpus, and DIRECTING Clerk of Court to Enter Judgment, signed by Chief Judge Anthony W. Ishii on 9/23/2009. CASE CLOSED. (Jessen, A)

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U . S . D i s t r ic t C o u r t E. D . C a lifo r n ia

U N IT E D STATES DISTRICT COURT

ANDY DELGADO RODRIGUEZ,

) ) Petitioner, ) ) v. ) ) JAMES YATES, Warden, ) ) Respondent. ) ____________________________________)

1:08-cv-01150 AWI YNP (DLB) (HC) ORDER GRANTING RESPONDENT'S MOTION TO DISMISS [Doc. #11] ORDER DISMISSING PETITION ORDER DIRECTING CLERK TO ENTER JUDGMENT

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. BACKGROUND In September 2006, a letter was placed in Petitioner's C-File concerning his possible involvement with the Mexican Mafia prison gang. (Exhibit 1 to Mot. to Dismiss). While concluding that there was not sufficient evidence to validate Petitioner as an associate or member, the Institutional Gang Investigator who wrote the report recommended that Petitioner be closely monitored for any future activity with the gang. (Id.) Petitioner tried to appeal the report several times at the second level of the prison's administrative appeal process but was rejected due to untimeliness. (Id., Ex. 3). Petitioner was also rejected at the third administrative level of appeal due to his failure to complete the second level. (Id., Ex. 4). Petitioner filed a petition for writ of habeas corpus in the California state courts requesting the determination of gang involvement be expunged from his record because it could have adverse 1

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affects on his ability to be released on parole. His petition with the Fresno County Superior Court was denied because Petitioner failed to provide any explanation as to why he waited six months between his final rejection at the administrative level and filing with the superior court. Petitioner's petition to the California Supreme Court was denied with a citation to In re Dexter, 25 Cal.3d 921 (1979), for failure to exhaust administrative remedies. Petitioner filed his petition with this Court on August 8, 2008. On November 10, 2008, Responded filed a motion to dismiss the petition on the grounds that Petitioner failed to exhaust state court remedies and that he does not present a claim for which habeas relief is available. Petitioner filed an opposition to the motion to dismiss on November 26, 2008. Respondent filed a reply to Petitioner's opposition on December 5, 2008. DISCUSSION I. Jurisdiction Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. In addition, the controversy arises out of Pleasant Valley State Prison Fresno County, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(d). Accordingly, the Court has jurisdiction over the action. On April 24, 1996, Congress enacted the AEDPA, which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (holding AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions. II. Procedural Grounds for Motion to Dismiss Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition . . . that the petitioner is not entitled to relief." See 2

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Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12. In this case, Respondent has not yet filed a formal answer so the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4. III. Standing Article III, § 2, of the Constitution gives the federal courts jurisdiction over only "cases and controversies." U.S. Const. Art. III, § 2, cl. 2. In order for a petitioner to satisfy the case-orcontroversy requirement "he must demonstrate that he has suffered an `injury in fact.'" Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). In other words, the petitioner "must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990). In this case, Petitioner does not claim that he has suffered any actual injury to the determination that he associates with the Mexican Mafia; instead he claims that he will be subject to injury in the future when his parole will be denied due to the letter about his possible involvement. In most cases, allegations of future injury cannot satisfy the requirements of Article III. "A threatened injury must be `certainly impending' to constitute and injury in fact." Whitmore, 495 U.S. at 158. Petitioner's allegation of future injury is far too speculative to be "certainly impending." Petitioner's parole hearing will not take place until 2042 and there is no way that Petitioner can prove that this report will be a deciding factor in the parole board's decision thirtythree years from now. Petitioner claims that it is obvious that being associated with a prison gang will affect his parole "no matter how far off that parole may be." (Opp'n to Mot. to Dismiss at 5). 3

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The Court recognizes the severity of being linked with a known prison gang but also recognizes that such association is not dispositive of being released on parole, especially with so much time remaining on Petitioner's sentence. There have been plenty of prisoners who were at one time associated with a prison gang who have gone on to be released on parole. If actual gang members can achieve parole, it should not be impossible for Petitioner, who claims he is not a member of the gang, to use the next thirty-three years to distance himself from gang activity and conduct himself as a model prisoner worthy of parole. Thus, Petitioner lacks standing because he has failed to show that his petition implicates the fact or duration of his confinement. IV. Exhaustion California Supreme Court denied Petitioner's state habeas corpus petition with a citation to In re Dexter, 25 Cal.3d 921 (1979). Dexter holds that "a litigant will not be afforded judicial relief unless he has exhausted available administrative remedies. Dexter, 25 Cal.3d at 925. By citing this case, it is clear the California Supreme Court was indicating that Petitioner had not exhausted his administrative remedies. A claim denied by the state's highest court as procedurally deficient, either explicitly or by citation of authority does not exhaust the claim. Harris v. Superior Court, 500 F.2d 1124, 1128 (9th Cir. 1974). The Ninth Circuit explained the rule as follows: If the denial of the habeas corpus petition includes a citation of an authority which indicates that the petition was procedurally deficient or if the California Supreme Court states so explicitly, then the available state remedies have not been exhausted as the California Supreme Court has not been given the required fair opportunity to correct the constitutional violation. Harris, 500 F.2d at 1128. Thus, a denial of Petitioner's final state habeas petition with a citation to Dexter is a denial on procedural grounds, leaving Petitioner's state remedies unexhausted. This Court cannot consider a petition that contains unexhausted claims. Rose v. Lundy, 455 U.S. 509, 521-22 (1982); Calderon v. United States Dist. Court, 107 F.3d 756, 760 (9th Cir. 1997) (en banc). Thus, the petition can be dismissed for lack of exhaustion as well as on the ground Petitioner lacks standing because the petition's merits do not implicate the fact or duration of Petitioner's confinement. //

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ORDER Accordingly, IT IS HEREBY ORDERED that: 1. 2. 3. Respondent's Motion to Dismiss is GRANTED; The Petition for Writ of Habeas Corpus is DISMISSED; and The Clerk of Court is DIRECTED to enter judgment.

IT IS SO ORDERED. Dated: 0m8i78 September 23, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE

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