Velasquez v. Lattimore

Filing 9

ORDER signed by Magistrate Judge Sheila K. Oberto on 7/26/2010 DISCHARGING 7 Order to Show Cause; DISMISSING Petition for Writ of Habeas Corpus for failure to exhaust State Remedies; DECLINING to Issue a Certificate of Appealability and DIRECTING Clerk to close case. CASE CLOSED.(Lundstrom, T)

(HC)Velasquez v. Lattimore

Doc. 9

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UNITED STATES DISTRICT COURT
7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 v. 13 WARDEN MARY LATTIMORE, 14 Respondent. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on April 19, 2010. Pending before the Court are 1) the petition, which was filed in this Court on April 8, 2010, and 2) Petitioner's 1
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DEENA VELASQUEZ, Petitioner,

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1:10-cv--00614-SKO-HC ORDER DISCHARGING THE ORDER TO SHOW CAUSE (Doc. 7) ORDER DISMISSING THE PETITION WITHOUT PREJUDICE FOR PETITIONER'S FAILURE TO EXHAUST STATE REMEDIES (Doc. 1) ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY ORDER DIRECTING THE CLERK TO CLOSE THE ACTION

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response, filed on July 16, 2010, to the Court's order to Petitioner to show cause why the petition should not be dismissed for failure to exhaust state remedies.1 The petition concerns the denial of Petitioner's parole on January 27, 2009. I. (Pet. 9.)

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 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

1 In view of Petitioner's response to the order to show cause, the order w i l l be discharged.

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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

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

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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, 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

17 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 18 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 19 Cir. 2001), stating: 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, 4

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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

6 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 7 2001). 8 Where none of a petitioner's claims has been presented to 9 the highest state court as required by the exhaustion doctrine, 10 the Court must dismiss the petition. 11 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 12 481 (9th Cir. 2001). 13 petition in abeyance pending exhaustion of the unexhausted claims 14 has not been extended to petitions that contain no exhausted 15 claims. 16 In the petition, Petitioner alleges that she sought a writ 17 of habeas corpus in the state Superior Court, which was denied on 18 November 6, 2009. 19 is an order denying a petition for writ of habeas corpus in the 20 California Court of Appeal, Fifth Appellate District. 21 156.) 22 the California Supreme Court in which she exhausted her claims. 23 In response to the Court's order to show cause, Petitioner 24 explains that she intended to file the petition in the Supreme 25 Court of California. 26 court on the petition as well as to indicia in other supporting 27 documents that tend to show that, as Petitioner claims, she 28 5 Petitioner points to the caption of the However, Petitioner does not describe any proceedings in (Pet. (Pet. 6.) Further, attached to the petition Raspberry, 448 F.3d at 1154. The authority of a court to hold a mixed Raspberry v. Garcia, 448

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mistakenly filed her petition in this Court instead of in the California Supreme Court. (Resp. (doc. 8) 1.) Petitioner also

asks that she be allowed to proceed to exhaust her administrative remedies. Petitioner thus admits that she did not exhaust her state court remedies. The Court concludes that in view of Petitioner's admission that she has not exhausted her claims in the state courts, the petition is unexhausted and must be dismissed. 2254(b)(1). With respect to Petitioner's request that she be allowed to proceed to exhaust her administrative remedies, the Court understands this as a statement of intention to proceed in the state courts, and not as a request for a stay of the present proceedings.2 III. Declining to Issue a Certificate of Appealabiity 28 U.S.C. §

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

2 Because the petition contains no exhausted claim and only unexhausted c l a i m s , a stay pursuant to either Rhines v. Weber, 544 U.S. 269 (2005) or K e l l y v. Small, 315 F.3d 1063 (9 th Cir. 2003) is not considered. Rasberry v. G a r c i a , 448 F.3d 1150, 1154 (9th Cir. 2006); King v. Ryan, 564 F.3d 1133, 1 1 3 4 - 3 5 (9 th Cir. 2009).

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

In determining this 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. must be dismissed. A petition containing only unexhausted claims Petitioner has not made a substantial showing

of the denial of a constitutional right. Accordingly, the Court will decline to issue a certificate of appealability. 7

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IV.

Disposition

Accordingly, it is ORDERED that: 1) The order to show cause that issued from this Court on June 21, 2010, is DISCHARGED; and 2) The petition for writ of habeas corpus is DISMISSED

without prejudice because Petitioner has failed to exhaust her state court remedies with respect to all claims in the petition; and 3) The Court DECLINES to issue a certificate of appealability; and 4) The Clerk is DIRECTED to close this action because this order terminates it in its entirety.

IT IS SO ORDERED. Dated: ie14hj July 26, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

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