Johnson v. Lopez

Filing 16

ORDER DIRECTING Petitioner to SHOW CAUSE in Writing No Later Than Twenty-One (21) Days After Service of This Order Why The Action Should Not Be Dismissed Without Prejudice For Failure to Exhaust State Court Remedies 1 , 11 , signed by Magistrate Judge Sheila K. Oberto on 5/3/11. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERIC JOHNSON,
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Petitioner,
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v.

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RAUL LOPEZ,

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Respondent.

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1:10-cv—00256-AWI-SKO-HC
ORDER DIRECTING PETITIONER TO
SHOW CAUSE IN WRITING NO LATER
THAN TWENTY-ONE (21) DAYS AFTER
SERVICE OF THIS ORDER WHY THE
ACTION SHOULD NOT BE DISMISSED
WITHOUT PREJUDICE FOR FAILURE TO
EXHAUST STATE COURT REMEDIES
(DOCS. 1, 11)
DEADLINE:

TWENTY-ONE (21) DAYS

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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a petition pursuant to 28 U.S.C. § 2254.

The

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matter has been referred to the Magistrate Judge pursuant to 28
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U.S.C. § 636(b)(1) and Local Rules 302 and 303.

Pending before

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the Court is the petition, which was filed on February 16, 2010.
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I.

Background

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Petitioner is an inmate of the California State Prison at
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Corcoran serving a sentence of five years and four months for
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eight counts of indecent exposure in violation of Cal. Pen. Code
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§ 314.1.

The offenses, consisting of repeated acts of

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masturbation, were committed while Petitioner was an inmate of a
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state prison.

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that the evidence of the conduct constituting the offenses was

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insufficient because the location of the conduct was a state

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prison, and thus the offense was not committed in a public place

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as Petitioner maintains the statute defining the crime required.

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(Pet. 1-7.)

Petitioner’s central contention is

Petitioner raises claims concerning the following grounds in

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the petition:

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appellate counsel for failing to advocate Petitioner’s theory of

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the case; 2) malicious prosecution based on Petitioner’s position

1) unspecified ineffective assistance of his

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that a prison is not a public place within the meaning of the

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statute defining the crime; 3) prosecutorial misconduct based on

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misrepresentation of the law of indecent exposure with respect to

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commission of the offense in a public place, reference in

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argument to Petitioner’s having admitted committing the act or

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conduct portion of the offense, and reference to Petitioner’s

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prior convictions; and 4) judicial misconduct based on the trial

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court’s failure to require the correct law to be applied at the

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preliminary hearing and failure to let Petitioner file a motion.

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(Pet. 4-7.)

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By order filed on November 24, 2010, the Court reviewed the

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petition and the law concerning exhaustion of state court

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remedies.

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to be a mixed petition, Petitioner could withdraw the unexhausted

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claims and proceed with the exhausted ones, or face dismissal of

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the petition without prejudice.

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days to file a motion to withdraw the unexhausted claims.

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Court informed Petitioner as follows:

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The Court concluded that because the petition appeared

The Court gave Petitioner thirty

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The

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In the event Petitioner does not file such
a motion, the Court will assume Petitioner desires
to return to state court to exhaust the unexhausted
claims and will therefore dismiss the Petition
without prejudice.

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(Doc. 11, 6:13-16.)

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on November 24, 2010.

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The order was served on Petitioner by mail

On January 3, 2011, Petitioner filed a purported notice of

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appeal from the Court’s order of November 24, 2010.

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2011, the Court of Appeals for the Ninth Circuit dismissed the

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appeal for lack of jurisdiction because it was taken from an

On April 19,

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order that was neither appealable nor final, and the appeal was

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terminated.

(Doc. 15.)

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II.

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A petitioner who is in state custody and wishes to challenge

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collaterally a conviction by a petition for writ of habeas corpus

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must exhaust state judicial remedies.

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The exhaustion doctrine is based on comity to the state court and

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gives the state court the initial opportunity to correct the

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state's alleged constitutional deprivations.

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Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509,

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518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir.

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1988).

Exhaustion of State Court Remedies

28 U.S.C. § 2254(b)(1).

Coleman v.

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A petitioner can satisfy the exhaustion requirement by

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providing the highest state court with the necessary jurisdiction

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a full and fair opportunity to consider each claim before

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presenting it to the federal court, and demonstrating that no

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state remedy remains available.

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275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir.

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1996).

Picard v. Connor, 404 U.S. 270,

A federal court will find that the highest state court
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was given a full and fair opportunity to hear a claim if the

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petitioner has presented the highest state court with the factual

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and legal basis for the claim.

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365 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-

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10 (1992), superceded by statute as stated in Williams v. Taylor,

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529 U.S. 362 (2000) (factual basis).

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Duncan v. Henry, 513 U.S. 364,

Additionally, the petitioner must have specifically told the

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state court that he was raising a federal constitutional claim.

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Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669

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(9th Cir.2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v.

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Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133

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F.3d 1240, 1241 (9th Cir. 1998).

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Supreme Court reiterated the rule as follows:

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In Duncan, the United States

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

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further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir.
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2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th
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Cir. 2001), stating:
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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.
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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.
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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, 668-69 (9th Cir. 2000), as
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amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir.
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2001).
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Here, Petitioner admits that none of his claims was
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presented in any state court except for claim three (3)
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concerning prosecutorial misconduct.

(Pet. 6.)

Reference to the

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unpublished opinion of the California Court of Appeal, Fifth
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Appellate District (DCA), which is included as an exhibit to the
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petition, reveals that the only basis for prosecutorial
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misconduct raised in the DCA was the prosecutor’s statement
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during rebuttal argument concerning how the argument for
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Petitioner, which admitted that Petitioner did not deny that the
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alleged acts happened, could be interpreted as a confession, and
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thus that Petitioner’s argument was based on an invitation to the
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jury to disregard the law.

(Pet. 18-19.)

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Petitioner’s petition for review filed in the California
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Supreme Court was denied on December 23, 2009.
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(Pet. 11.)

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Although Petitioner states that it is not known what grounds were

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raised in his petition for review filed in the California Supreme

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Court (Pet. 2), it is not logically possible that claims not

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raised before the DCA could have been included in a petition for

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review filed in the California Supreme Court.

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Where none of a petitioner’s claims has been presented to

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the highest state court as required by the exhaustion doctrine,

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the Court must dismiss the petition.

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F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478,

Raspberry v. Garcia, 448

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481 (9th Cir. 2001).

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and others are not (i.e., a “mixed” petition), the Court must

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dismiss the petition without prejudice to give Petitioner an

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opportunity to exhaust the claims if he can do so.

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U.S. at 510, 521-22; Calderon v. United States Dist. Court

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(Gordon), 107 F.3d 756, 760 (9th Cir. 1997), en banc, cert.

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denied, 118 S.Ct. 265 (1997); Greenawalt v. Stewart, 105 F.3d

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1268, 1273 (9th Cir. 1997), cert. denied, 117 S.Ct. 1794 (1997).

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However, the Court must give a petitioner an opportunity to amend

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a mixed petition to delete the unexhausted claims and permit

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review of properly exhausted claims.

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520; Calderon v. United States Dist. Ct. (Taylor), 134 F.3d 981,

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986 (9th Cir. 1998), cert. denied, 525 U.S. 920 (1998); James v.

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Giles, 221 F.3d 1074, 1077 (9th Cir. 2000).

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Further, where some claims are exhausted

Rose, 455

Rose v. Lundy, 455 U.S. at

The instant petition is a mixed petition containing

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exhausted and unexhausted claims.

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petition without prejudice unless Petitioner withdraws the

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unexhausted claims and proceeds with the exhausted claim in lieu

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of suffering dismissal.
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The Court must dismiss the

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III.

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Petitioner has failed to file a motion to withdraw any

Disposition

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unexhausted claims despite having been given an opportunity to

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file such a motion.

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petition.

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pendency of the intervening appellate proceedings, the Court will

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permit Petitioner to show cause why the action should not be

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dismissed as a mixed petition.

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The petition should be dismissed as a mixed

However, in an abundance of caution stemming from the

Accordingly, it is hereby ORDERED that Petitioner is GRANTED

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twenty-one (21) days from the date of service of this order to

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file a motion to withdraw the unexhausted claims or show other

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cause why the petition should not be dismissed without prejudice

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for failure to exhaust state court remedies.

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Petitioner does not show cause or file a motion to withdraw

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unexhausted claims, the Court will assume Petitioner desires to

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return to state court to exhaust the unexhausted claims and will

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recommend dismissal of the petition without prejudice.

In the event

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IT IS SO ORDERED.

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Dated:
ie14hj

May 3, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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