Baltiera v. McDonald

Filing 13

ORDER Discharging 9 Order to Show Cause; ORDER Granting Petitioner's 12 Motion to File a First Amended Petition; ORDER Deeming the Petition Filed in Response to the Order to Show Cause to be Petitioner's First Amended Petition; ORDER DI RECTING RESPONDENT to File a Response to the First Amended Petition; ORDER Setting a Briefing Schedule signed by Magistrate Judge Sheila K. Oberto on 07/11/2011. Clerk to serve a copy of this order, a copy of the Petition and the Order re Consent on the Attorney General. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARDO BALTIERA,
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Petitioner,
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v.
M. McDONALD, Warden,
Respondent.

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1:10-cv—00590-LJO-SKO-HC
ORDER DISCHARGING ORDER TO SHOW
CAUSE (DOC. 9)
ORDER GRANTING PETITIONER’S
MOTION TO FILE A FIRST AMENDED
PETITION (DOC. 12)
ORDER DEEMING THE PETITION FILED
IN RESPONSE TO THE ORDER TO SHOW
CAUSE TO BE PETITIONER’S FIRST
AMENDED PETITION (DOC. 12, 3-12)

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ORDER REQUIRING RESPONDENT TO
FILE A RESPONSE TO THE FIRST
AMENDED PETITION

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ORDER SETTING A BRIEFING SCHEDULE
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ORDER DIRECTING THE CLERK TO
SERVE DOCUMENTS ON THE ATTORNEY
GENERAL

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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.

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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.

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the Court is the Court’s order to Petitioner to show cause why

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the petition should not be dismissed for failure to exhaust state
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The

Pending before

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court remedies and the Court’s direction to Petitioner to

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withdraw unexhausted claims, which was filed on November 24,

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2010.

Petitioner responded to the order on February 17, 2011.

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I.

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Rule 4 of the Rules Governing § 2254 Cases in the United

Screening the Petition

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States District Courts (Habeas Rules) requires the Court to make

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a preliminary review of each petition for writ of habeas corpus.

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The Court must summarily dismiss a petition "[i]f it plainly

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appears from the petition and any attached exhibits that the

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petitioner is not entitled to relief in the district court....”

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Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.

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1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.

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1990).

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The Court may dismiss a petition for writ of habeas corpus

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either on its own motion under Rule 4, pursuant to the

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respondent's motion to dismiss, or after an answer to the

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petition has been filed.

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8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43

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(9th Cir. 2001).

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dismissed without leave to amend unless it appears that no

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tenable claim for relief can be pleaded were such leave granted.

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Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

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II.

Advisory Committee Notes to Habeas Rule

A petition for habeas corpus should not be

Exhaustion of State Court Remedies
A.

Legal Standards

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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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28 U.S.C. § 2254(b)(1).

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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).

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).

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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 claim's

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factual and legal basis.

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(1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10

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

A federal court will find that the highest state court

Duncan v. Henry, 513 U.S. 364, 365

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
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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.

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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

The Ninth Circuit examined the rule

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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.
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

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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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B.

Petitioner’s Claims

Petitioner raises the following claims in the originally
filed petition concerning his 2007 convictions in the Madera
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County Superior Court:

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667.6(d), a mandatory consecutive sentence was required for

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conviction of aggravated sexual assault of a child (Cal. Pen.

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Code § 269) despite the crime’s not being specified in the

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governing statute; 2) whether the trial court was required to

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inquire if a Spanish-language interpreter was sufficient when the

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court was on notice that Petitioner’s primary language was a

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Central American Indian language; 3) whether the trial court

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erred in denying a motion for a new trial after newly discovered

1) whether pursuant to Cal. Pen. Code §

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evidence revealed that a principal prosecution witness was a

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serial child abuser, which in turn would have explained how the

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two victims were able to provide detailed accounts of the facts

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concerning sexual abuse; 4) whether there was sufficient evidence

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of an attempt where the evidence showed only completed crimes,

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and the prosecutor elected not to use the completed crimes to

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support the charge of attempt; 5) whether material, exculpatory

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evidence was suppressed; and 6) whether Petitioner’s trial and

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appellate counsel rendered ineffective assistance for failing to

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raise the issue of suppression of evidence, thereby depriving

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Petitioner of a key defense.

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(Pet. 4-5, 7-9, 11.)1

Petitioner admitted in his petition that he did not present

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to any state or federal court his fifth and sixth grounds

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concerning suppression of evidence and related claims concerning

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allegedly ineffective assistance of trial and appellate counsel.

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Grounds 5 and 6 are not mentioned except in response to a question
concerning what grounds were not presented to the state courts (pet. 11);
however, it appears that Petitioner intended to raise these grounds in the
petition. Petitioner further states that some of the petition was not copied.
(Pet. 9-10, 13.) Accordingly, the Court will broadly construe the scope of
the grounds raised in the petition.

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(Pet. 9, 11.)
With respect to Petitioner’s first through fourth claims,

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Petitioner alleged that he had raised the claims before the Court

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of Appeal of the State of California, Fifth Appellate District

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(DCA), but he admitted that other than a direct appeal, no other

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applications had been filed.

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whether he appealed to the highest state court having

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jurisdiction the result of any action taken on any application to

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the state courts.

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Further, Petitioner did not state

(Pet. 4, 6.)

In response to the order to show cause, Petitioner submitted

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a declaration under penalty of perjury and an amended, verified

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petition from which the fifth and sixth admittedly unexhausted

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claims were deleted.

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which exhaustion was not affirmatively alleged in the originally

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filed petition, Petitioner did not provide a copy of any

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petitions that he had submitted to the California Supreme Court.

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Petitioner states in his declaration that although the records

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are unavailable, he was under the impression that his first,

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second, and third claims were presented to the California Supreme

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Court.

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states that other than a direct appeal from the judgment of

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conviction and sentence, he had not previously filed any

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petitions with respect to the challenged judgment.

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respond to the questions concerning an appeal to the highest

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state court with respect to any petition or application.

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12, 8.)

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With respect to the remaining claims as to

(Doc. 12, 1-2.)

In the amended petition, Petitioner

He does not

(Doc.

A search of the official website for the California courts
reflects that a petition for review from a criminal appeal in
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Petitioner’s case was filed in the California Supreme Court in

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People v. Eduardo Infante Baltierra, case number S167839, in

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October 2008, and was denied in December 2008.2

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In summary, the face of the petition and Petitioner’s

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declaration in response to the Court’s order to show cause reveal

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that state court remedies were not exhausted as to the fifth and

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sixth claims concerning suppression of evidence and related

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ineffective assistance of counsel.

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the face of the petition whether state court remedies were

However, it is unclear from

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exhausted as to the additional claims and whether Petitioner is

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entitled to relief.

28 U.S.C. § 2243.

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III.

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Because Petitioner timely responded to the order to show

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Discharge of the Order to Show Cause

cause, the order will be discharged.

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IV.

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The Court deems Petitioner’s motion to abandon claims (doc.

Amendment of the Petition

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12) filed in response to the order to show cause to be a motion

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to amend the petition to delete the admittedly unexhausted fifth

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and sixth claims.

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the motion (doc. 12, 3-12) to be a proposed first amended

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petition.

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The Court deems the petition submitted with

Petitioner’s motion to file a first amended petition will be
granted, and the petition filed in connection with the motion

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The Court may take judicial notice of facts that are capable of
accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned, including undisputed information posted on official
web sites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331,
333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d
992, 999 (9th Cir. 2010). It is appropriate to take judicial notice of the
docket sheet of a California court. White v Martel, 601 F.3d 882, 885 (9th
Cir. 2010), cert. denied, 131 S.Ct. 332 (2010).

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will be deemed to be the first amended petition.

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IV.

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Accordingly, it is hereby ORDERED that:

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1)

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Disposition

The order to show cause that issued on November 24,

2010, is DISCHARGED; and
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Petitioner’s motion to amend the petition to delete

unexhausted claims is GRANTED; and
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The petition filed as part of Petitioner’s response to

the order to show cause and motion to abandon unexhausted claims

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(doc. 12, 3-12) is DEEMED to be Petitioner’s first amended

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petition; and

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4)

Pursuant to Rule 4 of the Rules Governing Section 2254

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Cases and Rule 16 of the Federal Rules of Civil Procedure,3 the

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Court hereby ORDERS:

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a)

Respondent SHALL FILE a RESPONSE to the first amended

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petition4 within SIXTY (60) days of the date of service of this

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order.

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v. Rushen, 770 F.2d 1469, 1473-1474 (9th Cir. 1985) (court has

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discretion to fix time for filing a response).

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made by filing one of the following:

See Rule 4, Rules Governing Section 2254 Cases; Cluchette

A response can be

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i)

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Respondent SHALL INCLUDE with the ANSWER any and all

An ANSWER addressing the merits of the petition.

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The Federal Rules of Civil Procedure “apply to proceedings for habeas
corpus ... to the extent that the practice in those proceedings (A) is not
specified in a federal statute, the Rules Governing Section 2254 Cases, or the
Rules Governing Section 2255 Cases; and (B) has previously conformed to the
practice in civil actions.” Fed. R. Civ. P. 81(a)(4). Rule 12 also provides
“[t]he Federal Rules of Civil Procedure, to the extent that they are not
inconsistent with any statutory provisions or these rules, may be applied to a
proceeding under these rules.” Rule 12, Rules Governing Section 2254 Cases.
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Respondent is advised that a scanned copy of the petition is available
in the Court’s electronic case filing system (CM/ECF).

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transcripts or other documents necessary for the

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resolution of the issues presented in the petition.

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See Rule 5, Rules Governing Section 2254 Cases.

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Any argument by Respondent that a claim of Petitioner

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has been procedurally defaulted SHALL BE MADE in the

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ANSWER, but must also address the merits of the claim

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asserted.

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ii)

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dismiss SHALL INCLUDE copies of all Petitioner’s

A MOTION TO DISMISS the petition.

A motion to

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state court filings and dispositive rulings.

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See Rule 5, Rules Governing Section 2254 Cases.5

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b)

If Respondent files an answer to the petition,

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Petitioner MAY FILE a traverse within THIRTY (30) days of the

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date Respondent’s answer is filed with the Court.

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is filed, the petition and answer are deemed submitted at the

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expiration of the thirty (30) days.

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c)

If no traverse

If Respondent files a motion to dismiss, Petitioner

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SHALL FILE an opposition or statement of non-opposition within

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TWENTY-ONE (21) days of the date Respondent’s motion is filed

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with the Court.

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is deemed submitted at the expiration of the thirty (30) days.

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Any reply to an opposition to the motion to dismiss SHALL BE

If no opposition is filed, the motion to dismiss

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Rule 4 of the Rules Governing Section 2254 Cases provides that upon the
Court’s determination that summary dismissal is inappropriate, the “judge must
order the respondent to file an answer, motion, or other response within a
fixed time, or to take other action the judge may order.” Rule 4, Rules
Governing Section 2254 Cases; see also Advisory Committee Notes to Rules 4 and
5 of Rules Governing Section 2254 Cases (stating that a dismissal may obviate
the need for filing an answer on the substantive merits of the petition and
that the respondent may file a motion to dismiss for failure to exhaust);
White v. Lewis , 874 F.2d 599, 602-03 (9th Cir. 1989) (providing that a motion
to dismiss pursuant to Rule 4 is proper in a federal habeas proceeding).

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FILED within SEVEN (7) days after the opposition is served.

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d)

Unless already submitted, both Respondent and

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Petitioner SHALL COMPLETE and RETURN to the Court within THIRTY

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(30) days a consent/decline form indicating whether the party

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consents or declines to consent to the jurisdiction of the United

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States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c)(1).

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e)

The Clerk of the Court is DIRECTED to SERVE a copy of

this order on the Attorney General or his representative.

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All motions shall be submitted on the record and briefs

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filed without oral argument unless otherwise ordered by the

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Court.

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only be granted upon a showing of good cause.

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Local Rule 110 are applicable to this order.

Local Rule 230(l).

Requests for extensions of time will
All provisions of

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IT IS SO ORDERED.

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Dated:
ie14hj

July 11, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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