Walker v. Uribe

Filing 15

ORDER Discharging Order To Show Cause (Doc. 7 ), ORDER Denying Petitioner's Motion For Stay And Abeyance Of The Petition (Doc. 13 ), FINDINGS And RECOMMENDATION To Dismiss The Petition Without Prejudice For Failure To Exhaust State Court Remed ies (Doc. 1 ), Decline To Issue A Certificate Of Appealability, And Direct The Clerk To Close The Action, Objections Deadline: Thirty (30) Days, signed by Magistrate Judge Sheila K. Oberto on 12/12/2011. F&R's referred to Judge Anthony W. Ishii. (Objections to F&R due by 1/17/2012) (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL E. WALKER, II,
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Petitioner,
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v.
DOMINGO URIBE, JR., Warden,
Respondent.

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1:11-cv—00585-AWI-SKO-HC
ORDER DISCHARGING ORDER TO SHOW
CAUSE (Doc. 7)
ORDER DENYING PETITIONER’S MOTION
FOR STAY AND ABEYANCE OF THE
PETITION (Doc. 13)
FINDINGS AND RECOMMENDATION TO
DISMISS THE PETITION WITHOUT
PREJUDICE FOR FAILURE TO EXHAUST
STATE COURT REMEDIES (Doc. 1),
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND DIRECT THE
CLERK TO CLOSE THE ACTION
OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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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 Petitioner’s response to an order to show cause and

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Petitioner’s motion for a stay and abeyance of the proceedings to

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permit Petitioner to complete exhaustion of state court remedies
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The

Pending before

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with respect to the claims raised in the petition.

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I.

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Because Petitioner has filed a timely response to the order

Discharge of the Order to Show Cause

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to show cause, the order to show cause that issued on May 4,

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2011, is DISCHARGED.

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II.

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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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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).

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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).

Advisory Committee Notes to Habeas Rule

A petition for habeas corpus should not be

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III.

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Here, after review of the petition, the Court on May 4,

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Background

2011, issued an order to Petitioner to show cause why the

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petition should not be dismissed for Petitioner’s failure to

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exhaust state court remedies.

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Petitioner filed a motion to stay the proceedings to permit

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Petitioner to exhaust state court remedies, along with an

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explanation of the status of the proceedings supported by copies

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of documents submitted to the state courts.

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After multiple extensions of time,

In the petition, Petitioner alleged that he was an inmate of

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the Centinela State Prison1 serving a sentence of fifty-seven

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(57) years to life imposed on January 29, 2007, by the Stanislaus

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County Superior Court for convictions of attempted murder,

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brandishing a firearm at a peace officer, assault with a deadly

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weapon, and being a felon in possession of a firearm with gang

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enhancements.

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and alleges the following claims:

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ineffective assistance in violation of the Sixth and Fourteenth

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Amendments by failing to require the prosecution to prove

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predicate acts under Cal. Pen. Code § 186.22(f), a gang

(Pet. 1.)

Petitioner challenges his conviction
1) his trial counsel rendered

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The docket reflects a notice of change of address to Pleasant Valley
State Prison in Coalinga, California, filed on July 11, 2011.

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enhancement statute, and by failing to object to the application

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of the statute where there was an absence of evidence of ongoing

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association (pet. 26-31); 2) Petitioner’s rights under the Fifth

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Amendment and the Miranda decision were violated by the use of

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his alleged admission to a California corrections counselor

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during a classification intake procedure that he was a “Blood

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gang member” (id. at 32-33); 3) Petitioner’s right to due process

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of law guaranteed by the Sixth and Fourteenth Amendments as well

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as by the California Constitution was violated by the use of an

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unduly suggestive pretrial identification procedure (id. at 35-

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37); and 4) Petitioner’s right under the Sixth and Fourteenth

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Amendments to the effective assistance of counsel was violated by

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appellate counsel’s failure to raise the previous three grounds

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on direct appeal (id. at 38-39).

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However, absent from the petition were any allegations that

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as to these claims, state judicial remedies were exhausted;

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instead, Petitioner alleged that other issues had been presented

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on appeal and in a petition for review.

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Review of the motion for stay and the response to the order

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to show cause reveals that in October 2010, after Petitioner’s

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petition for review by the California Supreme Court was denied,

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Petitioner filed a habeas petition in the Stanislaus County

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Superior Court in which he raised the following claims:

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ineffective assistance of trial counsel based on counsel’s

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failure to force the prosecution to prove the requisite

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“predicate acts” to substantiate gang enhancements under Cal.

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Pen. Code § 186.22; 2) ineffective assistance of trial counsel

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based on counsel’s failure to object to admission of Petitioner’s
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1)

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statement of gang membership made to correctional officers during

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a classification proceeding; 3) ineffective assistance of trial

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counsel based on counsel’s failure to object to an unduly

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suggestive pretrial identification; 4) and ineffective assistance

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of

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substantive issues at trial or on appeal.2

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Petitioner is proceeding to exhaust remaining state court

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remedies as to these claims.

appellate counsel in failing to raise the foregoing
(Doc. 13, 9-10.)

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Petitioner has thus admitted that both presently and at the

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time he filed the petition, Petitioner’s state court remedies as

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to all the claims raised in the petition remained unexhausted.

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IV.

Exhaustion of State Court Remedies and Petitioner’s
Motion for a Stay

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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.

28 U.S.C. § 2254(b)(1).

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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.

Coleman v.

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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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It is unclear whether Petitioner raises the substantive issues as well
as the ineffective assistance of counsel based on counsel’s failure to raise
those issues because the petition itself was not provided by Petitioner;
rather, the summary of the issues pending in state court is based on the
Superior Court’s order denying the petition.

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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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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

529 U.S. 362 (2000) (factual basis).
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
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.

The Ninth Circuit examined the rule

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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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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.
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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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A district court has discretion to stay a petition which it
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may validly consider on the merits.

Rhines v. Weber, 544 U.S.

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269, 276 (2005); King v. Ryan, 564 F.3d 1133, 1138-39 (9th Cir.
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2009).

A petition that contains both exhausted and unexhausted

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claims (a “mixed” petition) may be stayed to allow a petitioner
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to exhaust state court remedies either under Rhines, or under
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Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003).

King v. Ryan, 564

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F.3d 1133, 1138-41 (9th Cir. 2009).
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However, where none of a petitioner’s claims has been
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presented to the highest state court as required by the
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exhaustion doctrine, the Court must dismiss the petition.

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Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)

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(declining to extend the authority to stay a petition under

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Rhines v. Weber to petitions containing no exhausted claims);

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Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (requiring

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dismissal upon the filing of a motion to dismiss a petition

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containing no exhausted claims).

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hold a mixed petition in abeyance pending exhaustion of the

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unexhausted claims has not been extended to petitions that

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contain no exhausted claims.

The authority of a court to

Raspberry, 448 F.3d at 1154.

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Although the Supreme Court in dicta has adverted to the

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possibility of filing a protective petition to permit exhaustion

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of claims stated therein, the suggestion was made in connection

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with a discussion of a Rhines stay, which is appropriate in cases

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involving not a fully unexhausted petition such as that in the

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present case, but rather a “mixed” petition containing both

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exhausted and unexhausted claims.

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U.S. 408, 416-417 (2005).

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pursuant to Kelly v. Small, 315 F.3d 1063, 1070 involves

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amendment of the petition to remove unexhausted claims and

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staying the exhausted claims.

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petitions and is unavailable in cases involving fully unexhausted

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petitions.

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See, Pace v. Diguglielmo, 544

Further, the stay procedure authorized

Thus, it also applies to mixed

The Court thus concludes that Petitioner is not entitled to

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a stay pursuant to either Rhines or Kelly because the petition

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contains no exhausted claims.

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Accordingly, Petitioner’s motion for a stay is DENIED.
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V.

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Because the petition contains only unexhausted claims, the

Dismissal of the Petition

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Court must dismiss the petition.

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1150, 1154; Jiminez v. Rice, 276 F.3d 478, 481.

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Raspberry v. Garcia, 448 F.3d

Accordingly, it will be recommended that the petition be
dismissed.3

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VI.

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Unless a circuit justice or judge issues a certificate of

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Certificate of Appealability

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.

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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: (1) whether the petition states a

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

Miller-El v. Cockrell, 537 U.S. at 336
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The Court notes that a dismissal for failure to exhaust is not a bar to
returning to federal court after exhaustion of available state remedies. See,
Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). The Court
further informs Petitioner that a dismissal for failure to exhaust will not
itself bar him from returning to federal court after exhausting his available
state remedies. However, this does not mean that Petitioner will not be
subject to the one-year statute of limitations imposed by 28 U.S.C. § 2244(d).
Although the limitations period is tolled while a properly filed request for
collateral review is pending in state court, 28 U.S.C. § 2244(d)(2), it is not
tolled for the time an application is pending in federal court. Duncan v.
Walker, 533 U.S. 167, 172 (2001).

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valid claim of the denial of a constitutional right, and

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(2) whether the district court was correct in any procedural

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ruling.

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

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

Id.

It is 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.

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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Here, it does not appear that reasonable jurists could debate

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whether the petition should have been resolved in a different

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manner.

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denial of a constitutional right.

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

Petitioner has not made a substantial showing of the

Accordingly, it will be recommended that the Court decline
to issue a certificate of appealability.

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VII.

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Accordingly, it is RECOMMENDED that:

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1)

Recommendation

The petition be DISMISSED because Petitioner has failed

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to exhaust his state court remedies as to any of the claims in

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the petition; and

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2)

The Court DECLINE to issue a certificate of

appealability; and
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The Clerk be DIRECTED to close the case.
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These findings and recommendations are submitted to the

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United States District Court Judge assigned to the case, pursuant

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to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of

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the Local Rules of Practice for the United States District Court,

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Eastern District of California.

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being served with a copy, any party may file written objections

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with the Court and serve a copy on all parties.

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should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.”

Within thirty (30) days after

Such a document

Replies to the objections shall be served

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and filed within fourteen (14) days (plus three (3) days if

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served by mail) after service of the objections.

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then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.

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§ 636 (b)(1)(C).

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objections within the specified time may waive the right to

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appeal the District Court’s order.

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1153 (9th Cir. 1991).

The Court will

The parties are advised that failure to file

Martinez v. Ylst, 951 F.2d

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IT IS SO ORDERED.

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Dated:
ie14hj

December 12, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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