Jones v. Cate

Filing 18

FINDINGS and RECOMMENDATIONS recommending that Respondent's 16 Motion to Dismiss Petition as Unexhausted be Granted; and the Instant 1 Petition for Writ of Habeas be Dismissed without Prejudice signed by Magistrate Judge Dennis L. Beck on 8/02/2009. Referred to Judge O'Neill; Objections to F&R due by 9/8/2009. (Flores, E)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 MATTHEW CATE, 13 Respondent. 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254. 17 BACKGROUND 18 In the instant petition for writ of habeas corpus, Petitioner challenges a disciplinary action 19 taken against him in 2007, while he was a prisoner at Kern Valley Prison. 20 On June 23, 2009, Respondent filed a motion to dismiss the petition under § 2254(b)(1) 21 as unexhausted. (Court Doc. 16.) Petitioner filed an opposition on July 10, 2009. (Court Doc. 22 17.) 23 DISCUSSION 24 A. 25 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 26 petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the 27 petitioner is not entitled to relief in the district court . . . ." The Advisory Committee Notes to 28 1 Procedural Grounds for Motion to Dismiss / v. JASON EARL JONES, Petitioner, 1:09-cv-00563-LJO-DLB (HC) FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS [Doc. 16]

UNITED STATES DISTRICT COURT

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Rule 5 of the Rules Governing Section 2254 Cases state that "an alleged failure to exhaust state remedies may be raised by the attorney general, thus avoiding the necessity of a formal answer as to that ground." The Ninth Circuit has referred to a respondent's motion to dismiss on the ground that the petitioner failed to exhaust state remedies as a request for the Court to dismiss under Rule 4 of the Rules Governing Section 2254 Cases. See e.g. O'Bremski v. Maass, 915 F.2d 418, 420 (1991); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982). Based on the Rules Governing Section 2254 Cases and case law, the Court will review Respondent's motion for dismissal pursuant to its authority under Rule 4. 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, 111 S.Ct. 2546, 2554-55 (1991); Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203 (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. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (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 v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888 (1995) (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, 115 S.Ct. at 888; Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). For example, if a petitioner wishes to claim that the trial court violated his due process rights "he must say so, not only in federal court but in state court." Duncan, 513 U.S. at 366, 115 S.Ct. at 888. A general appeal to a constitutional guarantee is 2

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insufficient to present the "substance" of such a federal claim to a state court. See Anderson v. Harless, 459 U.S. 4, 7, 103 S.Ct. 276 (1982) (Exhaustion requirement not satisfied circumstance that the "due process ramifications" of an argument might be "self-evident."); Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 1074 (1996) ("a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts which entitle the petitioner to relief."). 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. 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.

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Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added). Respondent argues and this Court agrees that Petitioner never presented his claims to the California Supreme Court. A review of the California Supreme Court's website it appears that Petitioner has filed four separate petitions in that court. (See Exhibit 1, Cal. Sup. Ct. Case Information, Search Results for Jones (Jason).)1 Only one of those four cases was filed after 2007-the year of the disciplinary action Petitioner is challenging. (See Exhibit 2, Cal. Sup. Ct. Case Information, Dockets and Case Summaries for the four cases filed by Jones, Jason (reflecting that Cal. Sup. Ct. case no. S164286 was filed on 6/12/08; and the other three cases were filed on 12/01/05, 10/10/02, and 08/15/01, respectively).) The one case filed after 2007, and before the instant petition, is unrelated to the claims asserted in the instant petition. (See Exhibit 3, Cal. Sup. Ct. case no. S164286.) Contrary to Petitioner's contention, an inmate who wishes to challenge either his state court conviction or the length of his confinement in state prison, must first exhaust the state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-134 (1987). The Court can also excuse exhaustion if "(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such a process ineffective to protect the rights of the application." 28 U.S.C. § 2254(b)(1)(B). In this case, Respondent has not waived exhaustion. In addition, California provides avenues for Petitioner to pursue state/federal claims. For example, these claims may be presented in a petition for writ of habeas corpus. See Cal. Penal Code §§ 1473-1475. Finally, Petitioner has not presented sufficient circumstances for the Court to ignore the United States Supreme Court's admonishment that comity demands exhaustion and find that California's corrective processes are ineffective to protect Petitioner's rights.2 Accordingly, the instant petition for writ of habeas corpus must be dismissed.

Pursuant to Rule 201 of the Federal Rules of Evidence, this Court takes judicial notice of the printout d o c u m e n t s from the California Supreme Court's website of case information, attached as Exhibits 1 through 3 to R e s p o n d e n t ' s motion to dismiss. Although Petitioner argues that prison officials delayed in responding to his administrative grievances, P e t itio n e r fails to demonstrate how such conduct has any bearing on his ability to exhaust the claims in the state court p r i o r to filing the instant federal petition.
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RECOMMENDATION Based on the foregoing, it is HEREBY RECOMMENDED that: 1. Respondent's motion to dismiss the instant petition as unexhausted be GRANTED; and, The instant petition for writ of habeas corpus be DISMISSED without prejudice.

This Findings and Recommendation is submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED. Dated: 3b142a

August 2, 2009

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE

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