Salinas v. Cate

Filing 7

ORDER for Petitioner to SHOW CAUSE within Thirty (30) Days why the 1 Petition Should Not be Dismissed for Failure to Allege Exhaustion of State Court Remedies signed by Magistrate Judge Sandra M. Snyder on 3/3/2011. Show Cause Response due by 4/6/2011. (Sant Agata, S)

-SMS Salinas v. Cate

Doc. 7

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UNITED STATES DISTRICT COURT
7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 v. 13 MATTHEW CATE, 14 Respondent. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
The case was transferred on January 12, 2011, and was subsequently retransferred to this Court and reopened on March 3, 2011.
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MATTHEW VINCENT SALINAS, Petitioner,

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1:11-cv--00020-OWW­SMS-HC ORDER TO PETITIONER TO SHOW CAUSE WITHIN THIRTY (30) DAYS WHY THE PETITION SHOULD NOT BE DISMISSED FOR FAILURE TO ALLEGE EXHAUSTION OF STATE COURT REMEDIES

Petitioner is a state prisoner proceeding pro and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate

Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed

on January 6, 2011.1 I. 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.

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Dockets.Justia.com

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

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

Petitioner alleges that he is an inmate of La Palma Correctional Center in Eloy, Arizona, who is serving a determinate sentence of four years and four months for conviction in the Kern County Superior Court in 2008 of possession of a controlled substance for sale. (Pet. 2.) 2 Petitioner challenges

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the manner in which state authorities apply the state statutes concerning sentencing and parole to Petitioner, and he alleges that by imposing parole at the end of a fully served sentence, the authorities are actually extending his sentence in violation of several constitutional provisions. III. (Pet. 3-18.)

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 Petitioner states that all administrative remedies with the 17 California Department of Corrections have been exhausted. 18 13.) 19 decision of the Kern County Superior Court denying habeas corpus 20 relief. 21 he has presented his claims to any other state court; he does not 22 specifically describe any proceedings in the state courts except 23 for the trial court decision. 24 Therefore, upon review of the instant petition for writ of 25 habeas corpus, it appears that Petitioner has not presented his 26 claims to the California Supreme Court. 27 presented all of his claims to the California Supreme Court, the 28 5 If Petitioner has not (Pet. 14-18.) However, Petitioner does not state that Petitioner also attaches to the petition a copy of a (Pet. Raspberry, 448 F.3d at 1154. The authority of a court to hold a mixed Raspberry v. Garcia, 448

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Court cannot proceed to the merits of those claims. § 2254(b)(1).

28 U.S.C.

It is possible, however, that Petitioner has

presented his claims to the California Supreme Court and simply neglected to inform this Court. Thus, Petitioner must inform the Court if his claims have been presented to the California Supreme Court, and if possible, provide the Court with a copy of the petition filed in the California Supreme Court, along with a copy of any ruling made by the California Supreme Court. Without knowing what claims have

been presented to the California Supreme Court, the Court is unable to proceed to the merits of the petition. III. Order to Show Cause Accordingly, Petitioner is ORDERED to show cause why the petition should not be dismissed for Petitioner's failure to exhaust state remedies. Petitioner is ORDERED to inform the

Court what claims have been presented to the California Supreme Court within thirty (30) days of the date of service of this order. Petitioner is forewarned that failure to follow this order will result in dismissal of the petition pursuant to Local Rule 110.

IT IS SO ORDERED. Dated: icido3 March 3, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

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