Rasheed v. Ullrich

Filing 6

ORDER to SHOW CAUSE; ORDER Granting Petitioner leave to Amend Petition and Name a Proper Respondent signed by Magistrate Judge Gary S. Austin on 4/13/2009. Show Cause Response due by 5/18/2009. Motion to Amend Petition due by 5/18/2009. (Flores, E)

1 2 3 4 5 6 7 8 9 10 11 12 TAHEE ABD RASHEED, 13 Petitioner, 14 v. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Preliminary Review of Petition Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Petitioner is a state prisoner proceeding pro se. On February 27, 2009, he filed a petition challenging his detention at Kern Valley State Prison. He claims he was scheduled for release on February 12, 2009, but was wrongfully placed in administrative segregation within the prison instead. Because Petitioner challenges his detention, the Court hereby construes his filing as a petition for writ of habeas corpus. DISCUSSION CORRECTIONAL COUNSELOR ULLRICH, Respondent. ) ) ) ) ) ) ) ) ) ) ) 1:09-CV-00415 GSA HC ORDER TO SHOW CAUSE ORDER GRANTING PETITIONER LEAVE TO AMEND PETITION AND NAME A PROPER RESPONDENT

U N IT E D STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). II. Exhaustion 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: 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.

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Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 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. Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added).

11 In the instant petition, Petitioner fails to state whether he has sought relief in the California 12 Supreme Court. If in fact he has not sought relief, his claims are unexhausted and the petition must 13 be dismissed. 28 U.S.C. § 2254(b)(1). It is possible that he has sought relief and failed to inform this 14 Court. Therefore, the Court will order Petitioner to show cause why the petition should not be 15 dismissed for failure to exhaust state remedies. If possible, Petitioner is directed to provide copies of 16 his state petitions. 17 III. Proper Respondent 18 A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer 19 having custody of him as the respondent to the petition. Rule 2 (a) of the Rules Governing § 2254 20 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme 21 Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of an incarcerated 22 petitioner is the warden of the prison in which the petitioner is incarcerated because the warden has 23 "day-to-day control over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 24 1992); see also, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). However, the 25 chief officer in charge of state penal institutions is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 26 F.3d at 360. Where a petitioner is on probation or parole, the proper respondent is his probation or 27 parole officer and the official in charge of the parole or probation agency or state correctional 28

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agency. Id. In this case, Petitioner names a correctional counselor as Respondent. This individual is not the correct respondent because he/she is not the official in "day-to-day control" over Petitioner. That would be the warden of the institution. Petitioner's failure to name a proper respondent requires dismissal of his habeas petition for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 1326 (9th Cir. 1970); see also, Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd Cir. 1976). However, the Court will give Petitioner the opportunity to cure this defect by amending the petition to name a proper respondent, such as the warden of his facility. See West v. Louisiana, 478 F.2d 1026, 1029 (5th Cir.1973), vacated in part on other grounds, 510 F.2d 363 (5th Cir.1975) (en banc) (allowing petitioner to amend petition to name proper respondent); Ashley v. State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). In the interests of judicial economy, Petitioner need not file an amended petition. Instead, Petitioner may file a motion entitled "Motion to Amend the Petition to Name a Proper Respondent" wherein Petitioner may name the proper respondent in this action. ORDER Accordingly, IT IS HEREBY ORDERED: 1) Petitioner is ORDERED to show cause within thirty (30) days from the date of service of this order why the petition should not be dismissed for failure to exhaust state remedies; and 2) Petitioner is GRANTED thirty (30) days from the date of service of this order in which to file a motion to amend the instant petition and name a proper respondent. Failure to amend the petition and state a proper respondent will result in a recommendation that the petition be dismissed for lack of jurisdiction.

IT IS SO ORDERED. Dated: 6i0kij

April 13, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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