House v. Board of Prison Terms

Filing 5

ORDER DISMISSING Petition for Writ of Habeas Corpus; ORDER Directing Clerk of Court to Enter Judgment and Close Case; ORDER Declining Issuance of Certificate of Appealability, signed by Magistrate Judge Gary S. Austin on 8/30/2010. CASE CLOSED.(Verduzco, M)

(HC) House v. Board of Prison Terms

Doc. 5

1 2 3 4 5 6 7 8 9 10 11 12 STEVE HOUSE, 13 Petitioner, 14 v. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has consented to the exercise of magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). On July 2, 2010, Petitioner filed the instant petition for writ of habeas corpus in this Court. Following a preliminary review of the petition, on July 21, 2010, the Court issued an order directing Petitioner to show cause why the petition should not be dismissed for failure to exhaust state remedies. Petitioner was forewarned that failure to respond would result in dismissal of the action. DISCUSSION Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part: If it plainly appears from the petition and any attached exhibits that the petitioner is not 1
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1:10-CV-01197 GSA HC ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY

BOARD OF PRISON TERMS, et al., Respondents.

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entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of

3 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to 4 5 Cir.2001). 6 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 7 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 8 exhaustion doctrine is based on comity to the state court and gives the state court the initial 9 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 10 U.S. 722, 731, 111 S.Ct. 2546, 2554-55 (1991); Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 11 12 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 13 full and fair opportunity to consider each claim before presenting it to the federal court. Picard v. 14 15 1996). A federal court will find that the highest state court was given a full and fair opportunity to 16 hear a claim if the petitioner has presented the highest state court with the claim's factual and legal 17 basis. Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 18 1 (1992) (factual basis). 19 Additionally, the petitioner must have specifically told the state court that he was raising a 20 federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 21 22 23 reiterated the rule as follows: 24 25 26 27 28
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dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th

1203 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988).

Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir.

(9th Cir.2000), amended, 247 F.3d 904 (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

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 2

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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 further, stating:

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 (c) 27 28
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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. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . . 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, 668-669 (9th Cir. 2000) (italics added). In this case, it appears that Petitioner has not sought relief in the California Supreme Court. The Court directed Petitioner to show cause why the petition should not be dismissed for failure to exhaust. Petitioner did not respond to the order. Therefore, the instant petition must be dismissed. 28 U.S.C. § 2254(b)(1). CERTIFICATE OF APPEALABILITY A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. MillerEl v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from­ (A) the final order in a habeas corpus proceeding in which the 3

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detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255.

3 4 5 6 If a court denies a petitioner's petition, the court may only issue a certificate of appealability 7 "if jurists of reason could disagree with the district court's resolution of his constitutional claims or 8 that jurists could conclude the issues presented are adequate to deserve encouragement to proceed 9 further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the 10 petitioner is not required to prove the merits of his case, he must demonstrate "something more than 11 the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. at 12 338. 13 In the present case, the Court finds that reasonable jurists would not find the Court's 14 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or 15 deserving of encouragement to proceed further. Petitioner has not made the required substantial 16 showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a 17 certificate of appealability. 18 ORDER 19 Accordingly, IT IS HEREBY ORDERED: 20 21 22 23 24 25 26 27 28
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(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

1) The petition for writ of habeas corpus is DISMISSED without prejudice1 for failure to
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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 28 U.S.C. § 2244 (b)'s prohibition on filing second p e titio n s . See In re Turner, 101 F.3d 1323 (9th Cir. 1996). However, the Supreme Court has held that: [ 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). S la c k v. McDaniel, 529 U.S. 473, 489 (2000). Therefore, Petitioner is forewarned that in the event he returns to federal court a n d files a mixed petition of exhausted and unexhausted claims, the petition may be dismissed with prejudice.

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exhaust state remedies; 2) The Clerk of Court is DIRECTED to enter judgment and close the case; and 3) The Court DECLINES to issue a certificate of appealability.

IT IS SO ORDERED. Dated: 6i0kij

August 30, 2010

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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