Marcos Valdez Moran v. Ken Clark, Warden

Filing 12

ORDER Dismissing 2 Petition for Writ of Habeas Corpus as Unexhausted; ORDER Directing Clerk of Court to Enter Judgment and Close File signed by Magistrate Judge Sandra M. Snyder on 07/02/2009. CASE CLOSED.(Flores, E)

1 2 3 4 5 6 7 8 9 10 11 12 MARCOS VALDEZ MORAN, 13 14 15 16 17 18 19 20 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ 21 of habeas corpus pursuant to 28 U.S.C. § 2254. On December 19, 2008, Petitioner filed his written 22 consent to the jurisdiction of the United States Magistrate Judge for all purposes in these 23 proceedings. (Doc. 7). On March 19, 2009, after conducting its preliminary screening of the 24 petition, the Court issued an Order to Show Cause requiring Petitioner to show cause within thirty 25 days why the petition should not be dismissed as entirely unexhausted. (Doc. 8). To date, Petitioner 26 has not responded to the Court's Order to Show Cause. 27 /// 28 /// 1 ) ) ) Petitioner, ) ) ) v. ) ) KEN CLARK, Warden, SATF-CSP, ) ) ) ) Respondent. ) ____________________________________) 1:08-cv-01788-BAK-SMS HC ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AS UNEXHAUSTED (Doc. 2) ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE FILE

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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DISCUSSION A. Preliminary Review of Petition Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001). B. Exhaustion of State Remedies. A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988). A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). In Duncan, the United States Supreme Court reiterated the rule as follows: 2

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In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "opportunity to pass upon and correct alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. Duncan, 513 U.S. at 365-366. Recently, the Ninth Circuit examined the rule further, stating:

7 8 9 10 11 12 13 14 15 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added). 16 In his petition, Petitioner asserts the following grounds for relief: (1) ineffective assistance of 17 trial counsel; (2) denial of Petitioner's right to due process because insufficient evidence supports the 18 conviction; and (3) ineffective assistance of appellate counsel. (Doc. 2). Petitioner alleges that he 19 filed a direct appeal in the California Court of Appeal, Fifth Appellate District, and that he also filed 20 a Petition for Review in the California Supreme Court. (Doc. 2, p. 8). However, with regard to the 21 latter, Petitioner alleges that it "raised a single issue not advanced herein...." (Id.). Petitioner never 22 alleges that he ever filed any petitions for writ of habeas corpus in the state courts containing the 23 claims in the instant petition or that he has ever presented the three claims contained in the instant 24 25 From the foregoing, the Court concludes that none of the claims in the instant petition were 26 ever presented to the California Supreme Court. Since Petitioner has not presented his claims for 27 28
T h e Court notes that the petition references various documents, denominated Exhibits A and B, that are not in fact f i le d with the Court or otherwise attached to the petition.
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Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is "self-evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . . In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is.

petition to the California Supreme Court.1

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federal relief to the California Supreme Court, the Court must dismiss the petition. See Calderon v. United States Dist. Court, 107 F.3d 756, 760 (9th Cir. 1997) (en banc); Greenawalt v. Stewart, 105 F.3d 1268, 1273 (9th Cir. 1997). The Court cannot consider a petition that is entirely unexhausted. Rose v. Lundy, 455 U.S. 509, 521-22 (1982); Calderon, 107 F.3d at 760. ORDER Accordingly, IT IS HEREBY ORDERED as follows: 1. 2. The petition for writ of habeas corpus (Doc. 2), is DISMISSED as unexhausted; and The Clerk of the Court is DIRECTED to enter judgment and close the file.

IT IS SO ORDERED. Dated: icido3 July 2, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

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