Mianta McKnight v. John Monday

Filing 12

ORDER DISMISSING the 1 Petition Without Prejudice for Failure to Exhaust State Court Remedies; ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY; ORDER DIRECTING the Clerk to Close the Action signed by Magistrate Judge Sheila K. Oberto on 9/7/2010. CASE CLOSED. (Sant Agata, S)

(HC) Mianta McKnight v. Tina Hornbeak

Doc. 12

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UNITED STATES DISTRICT COURT
7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 Petitioner is a state prisoner proceeding pro se and in 18 forma pauperis with a petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2254. 20 Petitioner has consented to the jurisdiction of the United States 21 Magistrate Judge to conduct all further proceedings in the case, 22 including the entry of final judgment, by manifesting consent in 23 a signed writing filed by Petitioner on August 10, 2009 (doc. 4). 24 Pending before the Court is Petitioner's petition, which was 25 filed on May 6, 2009, and transferred to this Court on July 20, 26 2009. 27 September 10, 2007, by the Board of Parole Hearings (Pet. 12.) 28 1
Dockets.Justia.com

MIANTA McKNIGHT,

) ) Petitioner, ) ) ) v. ) ) TINA HORNBEAK, Warden of ) Valley State Prison for Women,) ) Respondent. ) ) )

1:09-cv--1315-SKO-HC ORDER DISMISSING THE PETITION WITHOUT PREJUDICE FOR FAILURE TO EXHAUST STATE COURT REMEDIES (Doc. 1) ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY ORDER DIRECTING THE CLERK TO CLOSE THE ACTION

Pursuant to 28 U.S.C. § 636(c)(1),

The petition concerns the denial of Petitioner's parole on

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I.

Screening the Petition

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all

grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption;

O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition

that are vague, conclusory, or palpably incredible are subject to summary dismissal. Cir. 1990). Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

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II.

Exhaustion of State Judicial Remedies

A petitioner who is in state custody and wishes to challenge collaterally a 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, 1162-63 (9th Cir. 1988). A petitioner can satisfy the exhaustion requirement by providing the highest state court with the necessary jurisdiction a full and fair opportunity to consider each claim before presenting it to the federal court, and demonstrating that no state remedy remains available. Picard v. Connor, 404 U.S. 270,

275-76 (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

(1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 (1992), superceded by statute as stated in Williams v. Taylor, 529 U.S. 362 (2000) (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 (9th Cir. 2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 3

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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

12 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 13 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 14 Cir. 2001), stating: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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, see, e.g., Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); Crotts, 73 F.3d at 865. ... 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, 668-69 (9th Cir. 2000), as 4

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amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001). Where none of a petitioner's claims has been presented to the highest state court as required by the exhaustion doctrine, the Court must dismiss the petition. Raspberry v. Garcia, 448

F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The authority of a court to hold a mixed

petition in abeyance pending exhaustion of the unexhausted claims has not been extended to petitions that contain no exhausted claims. Raspberry, 448 F.3d at 1154.

Attached to the petition in this case is an order of the Superior Court of the County of San Mateo filed March 3, 2009, denying a petition for writ of habeas corpus filed by Petitioner concerning the claims filed in the petition pending before this Court. (Pet. 173-80.) However, Petitioner does not specifically

describe any other proceedings in the state courts in which she exhausted her claims. The petition is not on the customary form,

so Petitioner did not respond directly to the issue of exhaustion in the state courts. Because it appeared that Petitioner had not exhausted her claim or claims in the state courts, on July 9, 2010, this Court issued an order to Petitioner to show cause within thirty days why the petition should not be dismissed for lack of exhaustion of administrative remedies. Petitioner on July 9, 2010. The order was served by mail on Although the period for responding

to the order to show cause has passed, Petitioner has not responded to the order. Further, a check of the docket of the

California Supreme Court on August 27, 2010, by viewing the 5

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official website (www.courtinfo.ca.gov), revealed that nothing has been filed by Petitioner within the pertinent time period.1 Therefore, the Court concludes that Petitioner has not presented her claims to the California Supreme Court. Because no

exhausted claim is presented in the instant petition, the petition must be dismissed. 1154 (9th Cir. 2006). III. Certificate of Appealability Raspberry v. Garcia, 448 F.3d 1150,

Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue

U.S. 322, 336 (2003).

only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a

petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. at 336 A

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

certificate should issue if the Petitioner shows that jurists of reason would find it debatable whether: (1) the petition states a valid claim of the denial of a constitutional right, and (2) the district court was correct in any procedural ruling. McDaniel, 529 U.S. 473, 483-84 (2000). Slack v.

In determining this

1 I t is appropriate to take judicial notice of a docket sheet of a C a l i f o r n i a court. White v Martel, 601 F.3d 882, 885 (9th Cir. 2010).

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issue, a court conducts an overview of the claims in the habeas petition, generally assesses their merits, and determines whether the resolution was debatable among jurists of reason or wrong. Id. It is necessary for an applicant to show more than an

absence of frivolity or the existence of mere good faith; however, it is not necessary for an applicant to show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. at 338.

A district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a different manner. Petitioner has not made a substantial showing of the Accordingly, the Court

denial of a constitutional right.

DECLINES to issue a certificate of appealability. IV. Disposition

Accordingly, it is ORDERED that: 1) The petition is DISMISSED without prejudice for failure to exhaust state court remedies; and 2) The Court DECLINES to issue a certificate of appealability; and 3) The Clerk is DIRECTED to close this case.

IT IS SO ORDERED. Dated: ie14hj September 7, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

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