(HC) Scott v. State Board Of Parole et al

Filing 10

ORDER DISCHARGING #7 ORDER TO SHOW CAUSE; ORDER DISMISSING #1 PETITION for Writ of Habeas Corpus for Failure to Exhaust State Court Remedies; ORDER DECLINING to Issue a Certificate of Appealability; and ORDER Directing Clerk to Close Case, signed by Magistrate Judge Sandra M. Snyder on 7/26/2011. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DEONTAY SCOTT,
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Petitioner,
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v.
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STATE BOARD OF PAROLE, et al.,)
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Respondent.
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)

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1:10-cv—01002-SMS-HC
ORDER DISCHARGING ORDER TO SHOW
CAUSE (DOC. 7)
ORDER DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS FOR FAILURE
TO EXHAUST STATE COURT REMEDIES
(DOC. 1)
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY AND
DIRECTING THE CLERK TO CLOSE THE
CASE

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

Pursuant to 28 U.S.C. § 636(c)(1),

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Petitioner has consented to the jurisdiction of the United States
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Magistrate Judge to conduct all further proceedings in the case,
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including the entry of final judgment, by manifesting consent in
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a signed writing filed by Petitioner on June 15, 2010 (doc. 4).
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Pending before the Court is the Court’s order, issued on February
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3, 2011, to Petitioner to show cause why the petition should not
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be dismissed for failure to exhaust state court remedies.

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I.

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Petitioner responded to the order to show cause on March 7,

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Discharge of the Order to Show Cause

2011.

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Accordingly, the order to show cause will be discharged.

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II.

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

Dismissal of 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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grounds of relief available to the Petitioner; 2) state the facts

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supporting each ground; and 3) state the relief requested.

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Notice pleading is not sufficient; rather, the petition must

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state facts that point to a real possibility of constitutional

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error.

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O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v.

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Allison, 431 U.S. 63, 75 n. 7 (1977)).

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that are vague, conclusory, or palpably incredible are subject to

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summary dismissal.

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Cir. 1990).

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Habeas Rule 2(c) requires that a petition 1) specify all

Rule 4, Advisory Committee Notes, 1976 Adoption;

Allegations in a petition

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

Further, the Court may dismiss a petition for writ of habeas

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corpus either on its own motion under Habeas Rule 4, pursuant to

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the 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).

Advisory Committee Notes to Habeas Rule

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III.

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Petitioner challenges on constitutional grounds the decision

Background

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of the state parole authorities made in May 2010 to revoke

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Petitioner’s parole for ten months.

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In the petition, Petitioner does not indicate that he sought
review of the decision in the state courts.

(Pet. 1-7.)

In response to the order to show cause, Petitioner did not

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provide any information concerning exhaustion of state court

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remedies; rather, he argued regarding the merits of the decision

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to revoke his parole that is the subject of this petition.

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Further, a search of the official website of the California

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Courts for any filing by Petitioner in the California Supreme

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Court reveals no data.1

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IV.

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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.

Exhaustion of State Court Remedies

28 U.S.C. § 2254(b)(1).

Coleman v.

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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).
The address of the website is http://www.courts.ca.gov/courts/htm.

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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).

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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.

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

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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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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

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

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

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States Supreme Court reiterated the rule as follows:

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In Duncan, the United

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
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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

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Cir. 2001), stating:

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The Ninth Circuit examined the rule

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.

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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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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.

Raspberry v. Garcia, 448

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F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478,
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481 (9th Cir. 2001).

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petition in abeyance pending exhaustion of the unexhausted claims

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has not been extended to petitions that contain no exhausted

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claims.

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The authority of a court to hold a mixed

Raspberry, 448 F.3d at 1154.

Although non-exhaustion of remedies has been viewed as an

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affirmative defense, it is the petitioner’s burden to prove that

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state judicial remedies were properly exhausted.

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§ 2254(b)(1)(A); Darr v. Burford, 339 U.S. 200, 218-19 (1950),

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overruled in part on other grounds in Fay v. Noia, 372 U.S. 391

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(1963); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).

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If available state court remedies have not been exhausted as to

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all claims, a district court must dismiss a petition.

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Lundy, 455 U.S. 509, 515-16 (1982).

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28 U.S.C.

Rose v.

Here, Petitioner did not establish exhaustion of state court

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remedies in the petition.

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opportunity to establish exhaustion in his response to the order

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to show cause, Petitioner did not avail himself of the

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opportunity to establish exhaustion.

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official website of the California Supreme Court reflects no

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information that would tend to show that Petitioner presented his

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claims to the California Supreme Court.

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Although Petitioner was given an

Finally, a search of the

Therefore, it is concluded that Petitioner failed to meet
his burden to establish exhaustion of state court remedies.
Accordingly, the petition will be dismissed without
prejudice2 for failure to exhaust state court remedies.

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A dismissal for failure to exhaust is not a dismissal on the merits,
and Petitioner will not be barred from returning to federal court after
Petitioner exhausts available state remedies by the prohibition on filing
second habeas petitions set forth in 28 U.S.C. § 2244(b). See, In re Turner,

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V.

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Unless a circuit justice or judge issues a certificate of

Certificate of Appealability

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appealability, an appeal may not be taken to the Court of Appeals

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from the final order in a habeas proceeding in which the

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detention complained of arises out of process issued by a state

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court.

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U.S. 322, 336 (2003).

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only if the applicant makes a substantial showing of the denial

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of a constitutional right.

28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue

§ 2253(c)(2).

Under this standard, a

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petitioner must show that reasonable jurists could debate whether

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the petition should have been resolved in a different manner or

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that the issues presented were adequate to deserve encouragement

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to proceed further.

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

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certificate should issue if the Petitioner shows that jurists of

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reason would find it debatable whether the petition states a

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valid claim of the denial of a constitutional right and that

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jurists of reason would find it debatable whether the district

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court was correct in any procedural ruling.

Miller-El v. Cockrell, 537 U.S. at 336
A

Slack v. McDaniel,

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101 F.3d 1323 (9th Cir. 1996).
follows:

However, the Supreme Court has held as

[I]n the habeas corpus context it would be appropriate for an
order dismissing a mixed petition to instruct an applicant that
upon his return to federal court he is to bring only exhausted
claims. See Fed. Rules Civ. Proc. 41(a) and (b). Once the
petitioner is made aware of the exhaustion requirement, no reason
exists for him not to exhaust all potential claims before
returning to federal court. The failure to comply with an order of
the court is grounds for dismissal with prejudice. Fed. Rules Civ.
Proc. 41(b).

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Slack v. McDaniel, 529 U.S. 473, 489 (2000).

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Therefore, Petitioner is forewarned that in the event he returns to
federal court and files a mixed petition of exhausted and unexhausted claims,
the petition may be dismissed with prejudice.

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529 U.S. 473, 483-84 (2000).

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In determining this issue, a court conducts an overview of

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the claims in the habeas petition, generally assesses their

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merits, and determines whether the resolution was debatable among

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jurists of reason or wrong.

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applicant to show more than an absence of frivolity or the

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existence of mere good faith; however, it is not necessary for an

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applicant to show that the appeal will succeed.

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Cockrell, 537 U.S. at 338.

Id.

It is necessary for an

Miller-El v.

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A district court must issue or deny a certificate of

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appealability when it enters a final order adverse to the

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applicant.

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Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does not appear that reasonable jurists could

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debate whether the petition should have been resolved in a

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different manner.

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of the denial of a constitutional right.

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Petitioner has not made a substantial showing

Accordingly, the Court will decline to issue a certificate
of appealability.

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VI.

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Accordingly, it is ORDERED that:

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1)

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Disposition

The order to show cause that issued on February 3, 2011,

is DISCHARGED; and

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2)

The petition for writ of habeas corpus is DISMISSED

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without prejudice for Petitioner’s failure to exhaust state court

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remedies; and

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3)

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///

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The Court DECLINES to issue a certificate of

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appealability; and

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4)

The Clerk is DIRECTED to close the case.

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IT IS SO ORDERED.

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Dated:
icido3

July 26, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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