Manago v. Cate

Filing 26

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Barbara A. McAuliffe on 10/22/2012 recommending that 22 MOTION to DISMISS be granted. Referred to Judge Anthony W. Ishii; Objections to F&R due by 11/26/2012. (Lundstrom, T)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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STEWART MANAGO,

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)
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)
)
)
)
)

Petitioner,

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v.
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MATTHEW CATE,

1:11-cv—01172–AWI-BAM-HC
FINDINGS AND RECOMMENDATIONS RE:
RESPONDENT’S MOTION TO DISMISS
THE PETITION (DOCS. 22, 1, 11)

FINDINGS AND RECOMMENDATIONS TO
GRANT RESPONDENT’S MOTION TO
) DISMISS, DISMISS THE ACTION, AND
) DECLINE TO ISSUE A CERTIFICATE OF
) APPEALABILITY (DOC. 1)
)

)

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Respondent.
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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.

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local

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Rules 302 and 304.

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motion to dismiss the petition on the grounds of a failure to

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exhaust state court remedies and procedural default.

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was filed on June 18, 2012, and Petitioner filed opposition with

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a declaration on July 9, 2012.

The matter has been referred to the

Pending before the Court is Respondent’s

The motion

No reply was filed.

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I.

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Because the petition was filed after April 24, 1996, the

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Proceeding by a Motion to Dismiss

effective date of the Antiterrorism and Effective Death Penalty
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Act of 1996 (AEDPA), the AEDPA applies to the petition.

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Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d

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1484, 1499 (9th Cir. 1997).

Lindh v.

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A district court may entertain a petition for a writ of

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habeas corpus by a person in custody pursuant to the judgment of

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a state court only on the ground that the custody is in violation

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of the Constitution, laws, or treaties of the United States.

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U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,

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375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,

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16 (2010) (per curiam).
Rule 4 of the Rules Governing Section 2254 Cases in the

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United States District Courts (Habeas Rules) allows a district

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court to dismiss a petition if it “plainly appears from the face

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of the petition and any exhibits annexed to it that the

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petitioner is not entitled to relief in the district court....”

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The Ninth Circuit has allowed respondents to file motions to

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dismiss pursuant to Rule 4 instead of answers if the motion to

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dismiss attacks the pleadings by claiming that the petitioner has

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failed to exhaust state remedies or has violated the state’s

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procedural rules.

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420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss

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a petition for failure to exhaust state remedies).

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See, e.g., O’Bremski v. Maass, 915 F.2d 418,

Further, a respondent may file a motion to dismiss after the

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Court orders the respondent to respond, and the Court should use

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Rule 4 standards to review a motion to dismiss filed before a

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formal answer.

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n.12 (C.D.Cal. 1982).

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See, Hillery v. Pulley, 533 F. Supp. 1189, 1194 &

In this case, upon being directed to respond to the petition
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by way of answer or motion, Respondent filed the motion to

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dismiss.

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found in the pleadings and in copies of the official records of

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state prison and judicial proceedings which have been provided by

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the parties, and as to which there is no factual dispute.

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7

The material facts pertinent to the motion are to be

The Court will therefore review Respondent’s motion to
dismiss pursuant to its authority under Rule 4.

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II.

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Petitioner, an inmate of the California Correctional

Background

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Institution at Tehachapi, California (CCI), challenges his

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validation as an associate of the Black Guerrilla Family (BGF),

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which occurred on December 31, 2009, while Petitioner was an

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inmate of the California State Prison at Sacramento (CSP-SAC).

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(Pet., doc. 1, 18.)

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Petitioner raises the following claims in the petition: 1)

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officials of the California Department of Corrections and

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Rehabilitation (CDCR) have abused the prison gang validation

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procedure as a ruse to punish the Petitioner for exercising his

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constitutional right to file complaints regarding staff’s

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criminal behavior within the CDCR (id. at 5, 21,); 2) CDCR and

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prison officials illegally read Petitioner’s confidential legal

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materials and work product concerning pending litigation against

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other CDCR agents in order to start a prison gang validation

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proceeding as a ruse to punish the Petitioner for filing

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grievances (id. at 7, 25); 3) CDCR and prison officials corruptly

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conspired to abuse the prison gang validation procedures as a

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ruse to punish the Petitioner for filing inmate grievances

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against CCI staff in violation of the First Amendment and without
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1

a legitimate or valid penological purpose (id. at 29-30, 69-70);

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4) prison officials used the gang validation procedure as a ruse

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to punish Petitioner for reading Black militant literature which

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Petitioner had a First Amendment right to read (id. at 31); 5)

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CDCR and prison officials corruptly conspired to have Petitioner

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validated as an active associate of the BGF and to retain him in

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the Security Housing Unit (SHU) based on false, unreliable, and

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misleading information, knowing that it would subject Petitioner

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to a risk of retaliation and retribution from other groups in

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prison who are opposed to the BGF, which resulted in the change

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of Petitioner’s release date from June 2013 to October 2016 (id.

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at 32, 54); 6) Petitioner has a protected liberty interest not to

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be placed into the SHU for an indeterminate term based on a false

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and retaliatory prison gang validation which resulted from

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inadequate procedural safeguards in the validation process and in

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the procedures governing periodic review of inmates assigned to

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indeterminate terms in the SHU for gang affiliation, and

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Petitioner’s right to due process of law was violated by an

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indeterminate placement in the SHU without a determination that

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the information relied upon had some indicia of reliability,

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without the support of some evidence in the record, and without

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an opportunity to present his views to the decision maker (id. at

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55, 57-58, 66-68); and 7) Petitioner was subjected to an ex post

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facto law by the application to him of Cal. Pen. Code §§ 2933(A)-

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(B) and 3057(D), as effective on January 25, 2010, which rendered

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gang-validated SHU inmates ineligible to earn time credits (id.

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at 56, 61-62).

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Petitioner requests the following relief: expungement from
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his “C” file of the false, unreliable and insufficient

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information used to validate his active association with the BGF;

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release from the SHU; and return of various materials allegedly

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taken wrongfully by CDCR agents.

(Pet. 72-73.)

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III.

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In 2010, Petitioner filed in prison what he described as a

State Administrative and Judicial Proceedings

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citizen’s complaint concerning employee conduct pursuant to Cal.

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Pen. Code § 832.5 and Cal. Code Regs., tit. 15, §§ 3004 and

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3391.1

The complaint was filed against Correctional Officers

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Tyree, Turmezei, and unnamed “Does” for conspiring to retaliate

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against Petitioner for having reported staff misconduct by

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wrongfully having Petitioner placed into administrative

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segregation based on false and misleading information concerning

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prison gang activities.

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Petitioner requested that the matter be investigated by state and

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federal authorities and that Petitioner be awarded two million

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dollars in damages for retaliation.

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that the matter be processed as a staff complaint.

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31.)

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(Mot., Ex. A, doc. 22-4 at 22.)

(Id.)

Petitioner also asked
(Id. at 30-

Petitioner’s complaint was denied at the second level on

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March 8, 2010.

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2010, that was directed to Petitioner concerning the response

(Id. at 23, 32.)

A memorandum dated March 8,

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The date of submission is illegible. (Doc. 22-4 at 22.)
Further, because some of the pertinent pages of the exhibits to the
motion are missing from the courtesy copy provided to the Court, page
references are to the page numbers at the top of the page of the
electronically filed exhibits that are automatically assigned in the Court’s
CM/ECF docketing system.
Petitioner’s references are to title 15 of the California Code of
Regulations, §§ 3004 (concerning the rights and conduct of inmates and
employees) and 3391 (concerning employees’ conduct and complaints concerning
employees’ misconduct).

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informed Petitioner that the appeal was being processed as a

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staff complaint appeal inquiry.

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Petitioner and a confidential inquiry into the validation

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information was conducted, and thus the appeal was partially

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granted; however, the conclusion was that staff did not violate

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CDCR policy.

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personnel matters were confidential in nature and that if

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Petitioner wished to appeal the decision, he had to appeal

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through the Director’s level of review.

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(Id. at 32.)

An interview with

The memorandum informed Petitioner that all staff

(Id.)

Petitioner indicated his dissatisfaction and requested a

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Director’s Level Review.

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Level, Petitioner’s appeal was denied.

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at 45, doc. 22-5 at 1.)

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(Id. at 23-27.)

At the Director’s

(Mot., ex. A, doc. 22-4

Petitioner filed a petition for writ of habeas corpus in the

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Superior Court of the State of California for the County of Kern

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(KCSC) on July 22, 2010, in which he challenged the 2009 gang

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validation.

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were 1) prison officials abused the gang validation procedure to

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retaliate against Petitioner for complaints concerning CDCR staff

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misconduct; 2) CDCR staff illegally read and searched

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Petitioner’s confidential legal materials and work product in

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order to start a prison gang validation procedure as a ruse to

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punish the Petitioner for having filed grievances; 3) the abuse

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of the prison gang validation procedure violated Petitioner’s

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First Amendment right to read any literature that did not affect

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a legitimate penological interest, including Black militant

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literature; and 4) CDCR prison officials corruptly conspired to

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have Petitioner validated as an active prison gang associate of

(Mot., ex. F.)

The grounds stated in the petition

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the BGF and retained him in the SHU based on false, unreliable,

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and misleading information.

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and unreliable information be expunged from his “C” file, his

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literature be returned, and that Petitioner be released from the

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SHU.

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Petitioner requested that the false

(Mot., ex. F, doc. 22-14 at 2-19.)
The KCSC denied the petition.

(Mot., Ex. E, Ord. dated

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September 22, 2010 at 3-4.) In the order denying the petition,

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the KCSC concluded that various items of evidence were useable

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sources to sustain the gang validation.

(Id. at 2.)

Near the

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end of the court’s discussion of the evidence used to validate

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Petitioner’s gang association, the KCSC stated the following:

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Other staff complaints (sic) found no evidence of
retaliation against petitioner by corrections
officials. Moreover, petitioner failed to exhaust
his administrative remedies concerning the
gang validation. Pursuit of and exhaustion of
administrative remedies is a prerequisite
to seeking habeas corpus relief. In re Dexter
(1979) 25 Cal.3d 921, 925, In re Muszalski
(1975) 52 Cal.3d 500, 508. The June 16, 2010 Directors’
Level decision dealt with a staff complaint regarding
fabrication of the gang validation by Officers
Turmezei and Sgt. Tyree. That decision opined that
petitioner is not privy to staff complaint investigatory
findings since they are privileged under P.C. Sections
832.7 and 832.8 due to their (sic) confidential personnel
decisions.

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It did not directly address the evidence to sustain the
validation. However, even if petitioner exhausted
his administrative remedies, the court finds more than
sufficient evidence to sustain the gang validation.
So long as there is evidence to sustain the gang
validation, this court will not disturb it.
In re Lucero (1992) 4 Cal.App.4th 572, 575,
Cato v. Rushen (1987) 824 F.2d 703, 705 (9th Cir.).
Contrary to petitioner’s allegation that he cannot
belong to two gangs, the evidence shows otherwise.
On the basis of the foregoing, the petition for
writ of habeas corpus is accordingly denied.

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(Id.)
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Petitioner sought reconsideration, which the KCSC denied on

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November 29, 2010, ruling that no new evidence was submitted to

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warrant a change of position, and noting that the court was aware

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of no authority that permitted a court to reconsider a petition

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for writ of habeas corpus.

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(Mot., exs. H, G.)

Petitioner filed a petition in the Court of Appeal of the

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State of California, Fifth Appellate District (CCA), (mot., ex.

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D), which the court denied on November 30, 2010, without a

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statement of reasons or citation to any authority, (mot., ex. C).

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Petitioner filed a petition for writ of habeas corpus in the

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California Supreme Court (CSC), alleging that the CCA’s denial of

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his petition violated his rights under the First, Eighth, and

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Fourteenth Amendments, and seeking the same relief sought in the

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KCSC.

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June 29, 2011, without a statement of reasons or citation of

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authority.

(Mot., ex. A at 2-49.)

The CSC denied the petition on

(Mot., ex. B.)

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IV.

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Respondent argues that the case should be dismissed because

Procedural Default

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Petitioner’s claims are procedurally defaulted based on

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Petitioner’s failure to exhaust his state administrative remedies

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as required under California law.

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A.

Petitioner’s Procedural Default

The doctrine of procedural default is a specific application

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of the more general doctrine of independent state grounds.

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provides that when state court decision on a claim rests on a

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prisoner’s violation of either a state procedural rule that bars

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adjudication of the case on the merits or a state substantive

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rule that is dispositive of the case, and the state law ground is
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It

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independent of the federal question and adequate to support the

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judgment such that direct review in the United States Supreme

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Court would be barred, then the prisoner may not raise the claim

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in federal habeas absent a showing of cause and prejudice or that

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a failure to consider the claim will result in a fundamental

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miscarriage of justice.

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1120, 1127 (2011); Coleman v. Thompson, 501 U.S. 722, 729-30

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(1991); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003);

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Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994).

Walker v. Martin, - U.S. -, 131 S.Ct.

The doctrine

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applies regardless of whether the default occurred at trial, on

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appeal, or on state collateral review.

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U.S. 446, 451 (2000).

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Edwards v. Carpenter, 529

On federal habeas corpus review, when it fairly appears that

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the state court judgment rested primarily on federal law or was

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interwoven with federal law, and the adequacy and independence of

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any possible state law ground is not clear from the face of the

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petition, it is presumed that the state court decided the case

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the way it did because it believed that federal law required it

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to do so.

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Reed, 489 U.S. 255, 266 (1989).

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default does not bar consideration of a federal claim on either

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direct or habeas review unless the last state court rendering a

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judgment in the case clearly and expressly stated that its

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judgment rested on a procedural bar.

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U.S. at 733, 735-36; Harris v. Reed, 489 U.S. at 266.

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state court discusses a state procedural bar as a separate basis

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for its decision but then, in an alternative holding, discusses

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the merits of the federal claim, the court has clearly and

Coleman v. Thompson, 501 U.S. at 734-36; Harris v.
In such a case, a procedural

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Coleman v. Thompson, 501
Where a

1

expressly stated its reliance on a procedural ground, and the

2

procedural bar applies.

3

(9th Cir. 2003); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir.

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1992) (citing Coleman v. Thompson, 501 U.S. 722 and Harris v.

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Reed, 489 U.S. at 264 n.10).

6

Bennett v. Mueller, 322 F.3d 573, 580

Here, the KCSC issued a reasoned decision; however, both the

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CCA and the CSC summarily denied Petitioner’s habeas petitions.

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Where there has been one reasoned state judgment rejecting a

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federal claim, later, unexplained orders upholding that judgment

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or rejecting the same claim are presumed to rest upon the same

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ground.

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where the California Supreme Court denies a habeas petition

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without citation or comment, a district court will “look through”

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the unexplained decision of that state court to the last reasoned

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decision of a lower court as the relevant state court

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determination.

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Maddox, 366 F.3d 992, 998 n.5 (9th Cir. 2004).

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the burden to overcome or rebut the presumption by strong

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evidence that the presumption, as applied, is wrong.

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U.S. at 804.

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basis to overcome the presumption.

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through the unexplained appellate decisions to the decision of

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the KCSC.

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Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

Thus,

Ylst v. Nunnemaker, 501 U.S. at 803-04; Taylor v.
A petitioner has

Ylst, 501

Here, the Court has not been presented with any
The Court will thus look

The decision of the KCSC shows that although the court

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considered and found sufficient evidence supporting the gang

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validation, it also expressly and alternatively concluded that

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Petitioner failed to exhaust his administrative remedies

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concerning the gang validation and noted that such exhaustion was
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a prerequisite to seeking habeas relief.

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noted not only the procedural default of filing only a staff

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complaint concerning the conduct of two officers, which was a

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confidential personnel matter, but also the resulting decision on

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the complaint, which did not directly address the evidence to

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sustain the gang validation.

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state court clearly and expressly indicated it reliance on

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Petitioner’s actual procedural default as an alternative holding.

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(Id.)

(Ex. E.)

The KCSC

It thus appears that the

Because state procedural default is an affirmative defense,

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the state has the obligation to plead the defense or lose the

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right to assert the defense thereafter.

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F.3d at 585.

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persuasion as to the adequacy and independence of the pertinent

14

rule.

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the existence of an independent and adequate state procedural

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ground as an affirmative defense, the burden to place the defense

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in issue shifts to the petitioner, who may satisfy the burden by

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asserting specific factual allegations that demonstrate the

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inadequacy of the state procedure, including citation to

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authority demonstrating inconsistent application of the rule.

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Id. at 586.

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of proof of the defense is on the state.

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Bennett v. Mueller, 322

Further, the state bears the ultimate burden of

Id. at 585-86.

However, once the state adequately pleads

Once the petitioner has done so, the ultimate burden
Id. at 586.

Here, Respondent has raised the procedural default and has

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set forth authority supporting the existence of an independent

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and adequate state procedural ground.

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Respondent notes, the state court cited In re Dexter, 25 Cal.3d

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921, 925 (1979), which stands for the proposition that a state

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habeas petitioner “will not be afforded judicial relief unless he
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(Mot., doc. 22, 5-6.)

As

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has exhausted available state administrative remedies.”

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Dexter, 25 Cal.3d at 925.

3

In re

For a state procedural rule to be independent, the state law

4

basis for the decision must not be interwoven with federal law.

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Bennett v. Mueller, 322 F.3d at 581.

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interwoven if the state has made application of the procedural

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bar depend on an antecedent ruling on federal law, such as the

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determination of whether federal constitutional error has been

9

committed.

Id.

A state law ground is so

Independence is determined as of the date of the

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state court order that imposed the procedural bar.

11

Kernan, 244 F.3d 702, 704 (9th Cir. 2001).

12

La Crosse v.

Here, California’s administrative exhaustion requirement

13

proceeds from state statutory and regulatory law.

14

Code § 5058 (authorizing the promulgation of regulations for

15

administration of the prisons); Cal. Code Regs., tit. 15,

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§ 3084.1 (providing a comprehensive and mandatory administrative

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appeal process for inmates’ grievances or challenges to prison

18

rules).

19

exhaustion requirement as a “general rule” and cited multiple

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California cases.

21

52 Cal.App.3d 500 (1975), a case also cited by the KCSC in its

22

order denying Petitioner’s habeas petition, the court described

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the exhaustion requirement as being “well settled as a general

24

proposition.”

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administrative exhaustion rule thus is based solely on state law

26

and thus is independent of federal law.

27

2011 WL 976606, *8-9 (No. 10CV918-JM(JMA), S.D.Cal. Feb. 18,

28

2011) (collecting state authorities).

See, Cal. Pen.

In Dexter, the court referred to the administrative

Dexter, 25 Cal.3d at 925.

In In re Muszalski,

Muszalski, 52 Cal.App.3d at 503.

12

California’s

See, Edwards v. Small,

1

In the absence of exceptional circumstances, a procedural

2

ground is “adequate” where it is firmly established and regularly

3

followed at the time of the default.

4

131 S.Ct. at 1127-28.

5

exhaustion requirement has been applied and has been recognized

6

as established.

7

Dist., 17 Cal.2d 280, 292-93 (1941) (describing the rule as a

8

settled, “fundamental rule of procedure laid down by courts of

9

last resort, followed under the doctrine of stare decisis, and

Walker v. Martin, –U.S.-,

Since 1941, California’s administrative

Abeilleira v. District Court of Appeal, Third

10

binding upon all courts”).

11

applied since Abelleira was decided.

12

52 Cal.App.3d at 503 (characterizing the rule as well settled);

13

Rojo v. Kliger, 52 Cal.3d 65, 84 (1990) (describing the rule as

14

“oft-quoted” in connection with the need to exhaust

15

administrative remedies provided for a statutory right);

16

California Correctional Peace Officers Assn. v. State Personnel

17

Bd., 10 Cal.4th 1133, 1148 (1995) (stating that the authorities

18

applying the rule were “so numerous that only the more important

19

ones need be cited” for purposes of illustration); see also,

20

Drake v. Adams, 2009 WL 2474826, *2 (No. 2:07-cv-00577-JKS,

21

E.D.Cal. Aug. 11, 2009) (stating that a review of California

22

cases in which the issue of exhaustion of administrative remedies

23

was decided during the previous ten years revealed no case in

24

which a California appellate court did not deny a petition for

25

writ of habeas corpus for failure to comply with the rule).

26

Thus, the rule applied in the present case was adequate to

27

support the judgment.

28

The rule has been consistently
See, e.g., In re Muszalski,

Petitioner did not assert specific factual allegations that
13

1

demonstrate the inadequacy of the state procedure.

2

concludes that the state’s rule of exhaustion of administrative

3

remedies was independent and adequate.

4

The Court

In response to the motion to dismiss, Petitioner argues that

5

he did exhaust his claims in the state courts, and specifically

6

that his staff complaint was adequate to exhaust his

7

administrative remedies.

8

part of the Prison Litigation Reform Act (PLRA), and authorities

9

applying it, such as Griffin v. Arpaio, 557 F.3d 1117, 1119-20

Petitioner cites to 42 U.S.C. § 1997e,

10

(9th Cir. 2009).

11

adopted in Griffin, his staff complaint was sufficient to alert

12

prison authorities to the nature of the wrong for which redress

13

is sought.

14

Petitioner argues that pursuant to the standard

However, Petitioner is not proceeding pursuant to the PLRA.

15

With respect to habeas corpus proceedings, it is established that

16

when a federal court considers the issue of a procedural default,

17

it will not review the propriety of the state court’s application

18

of its default.

19

1999).

20

it lacked subject matter jurisdiction to review state court

21

applications of state procedural rules.

22

has also indicated that a federal court will not review the

23

propriety of a state court’s application of an independent and

24

adequate state law ground, reasoning that if a habeas petitioner

25

has failed to meet a state’s procedural requirements for

26

presenting his federal claims, then the petitioner has deprived

27

the state courts of an opportunity to address the claims in the

28

first instance.

Poland v. Stewart, 169 F.3d 573, 584 (9th Cir.

In Poland, the court limited its review because it stated

Id.

The Supreme Court

Lambrix v. Singletary, 520 U.S. 518, 523 (1997).
14

1

Such claims could not be reviewed by the United States Supreme

2

Court on direct review because of a lack of jurisdiction to

3

review judgments resting on a state law ground that is

4

independent of the federal question and adequate to support the

5

judgment.

6

require federal courts to apply the independent and adequate

7

state ground doctrine; otherwise, a federal district court or

8

court of appeals would be able to review claims that the United

9

States Supreme Court would have been unable to consider on direct

10
11

review.

Id.

Equitable considerations of federalism and comity

Id.

An exception to limited review has been recognized where the

12

state court’s interpretation of the state procedural law is

13

clearly untenable and amounts to a subterfuge to avoid federal

14

review of a deprivation of rights protected by the Constitution.

15

Lopez v. Schriro, 491 F.3d 1029, 1043 (9th Cir. 2007), cert.

16

den., Schriro v. Lopez, 552 U.S. 1224 (2008).

17

Here, Petitioner filed a staff complaint seeking damages

18

because of staff misconduct; Petitioner did not file a grievance

19

seeking to be released from the SHU or to set aside the gang

20

validation because of defects in the process or in the nature or

21

quantum of evidence supporting the validation.

22

tit. 15, § 3084.2 requires the inmate to raise one issue or

23

related set of issues per appeal form and to describe on the form

24

the specific issue and action requested; it expressly states that

25

any decision rendered will pertain only to the present appeal

26

issue and “requested action(s).”

27

It was thus tenable for the state court to rule that Petitioner

28

failed to exhaust administrative remedies.
15

Cal. Code Regs.,

§ 3084.2(a)(1), (2); (b)(1).

Petitioner arguably

1

failed to comply with the requirement of § 3084.2(a)(2) because

2

he failed to describe any specific issue and action requested

3

beyond the staff misconduct and request for money damages.

4

Further, the regulations specifically provide for prison

5

staff to determine whether an appeal alleging staff misconduct

6

should be processed as a routine appeal or as a staff complaint;

7

if an appeal is processed as a staff complaint, then the inmate

8

will be notified that any other issues besides the staff

9

misconduct that are present in the appeal raising the staff

10

complaint may only be appealed separately, and thus re-submission

11

of those issues within thirty calendar days is required if the

12

intention is to seek resolution of such matters.

13

Regs., tit. 15, §§ 3084.5(b)(4); 3084.9(i).

14

the exceptional nature of a staff complaint and the failure of

15

Petitioner to include other issues in the staff complaint, the

16

state court tenably and reasonably could have concluded that

17

Petitioner’s failure to file a separate grievance concerning his

18

gang validation, status as a gang associate, and his housing

19

assignment, as well as his failure to seek the specific action of

20

invalidating the gang validation and releasing Petitioner from

21

the SHU, constituted a failure to exhaust administrative remedies

22

as to those issues.

23

Cal. Code

Thus, in light of

The Court concludes that the state court’s application of

24

its procedural bar was not clearly untenable and did not amount

25

to a subterfuge to avoid federal review.

26

not review the state court’s application of its procedural bar.

27

Petitioner further contends that his petition is not

28

procedurally defaulted because the state court adjudicated his
16

This Court thus will

1

claim or claims on the merits.

2

state court clearly and expressly imposed a procedural bar as an

3

alternative to a review of the merits, and thus, the procedural

4

bar was not vitiated.

5

B.

6

However, as previously noted, the

Cause and Prejudice

If the respondent has asserted the procedural default

7

doctrine in a timely and proper fashion, and if the default

8

provides an independent and adequate state procedural ground for

9

decision, the petitioner is barred from raising the defaulted

10

claims unless the petitioner can 1) excuse the default by

11

demonstrating cause for the default and actual prejudice as a

12

result, or 2) show that the case comes within the category of

13

cases the Supreme Court has characterized as fundamental

14

miscarriages of justice.

15

Coleman v. Thompson, 501 U.S. at 722.

Cause is a legitimate excuse for the default.

Thomas v.

16

Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991).

17

cause generally means that the petitioner must show that some

18

objective factor external to the defense impeded efforts to

19

construct or raise a claim, such as a showing that the factual or

20

legal basis for a claim was not reasonably available, counsel was

21

ineffective in failing to preserve a claim, or some interference

22

by officials made compliance impracticable.

23

501 U.S. at 753 (citing Murray v. Carrier, 477 U.S. 478, 488, 492

24

(1986)).

25

A demonstration of

Coleman v. Thompson,

Here, Petitioner has not alleged any facts that would

26

support a conclusion that there was any objective factor external

27

to the defense that impeded efforts to construct or raise a

28

claim.

Petitioner’s staff complaint showed that he knew the
17

1

factual basis for his claim, and there is no basis for an

2

inference that the legal basis of his claim was not reasonably

3

available.

4

is no indication of any interference by officials.

Petitioner was not represented by counsel, and there

5

In a declaration, Petitioner re-alleges his claims of

6

retaliatory gang validation and reiterates facts in support of

7

those claims concerning the allegedly retaliatory gang

8

validation.

9

Petitioner’s reports of staff misconduct in the CDCR within the

He also details a more temporally remote history of

10

past two decades.

11

establish any cause for Petitioner’s procedural default.

12

(Doc. 24, 13-42.)

These facts do not

In asserting that he was not a member of the BGF, Petitioner

13

alleges that he suffers from “major mental illnesses,” takes

14

unspecified anti-psychotic medications, and was housed for many,

15

unspecified years in the enhanced outpatient program; thus, he

16

could not be a member of a gang because no California prison gang

17

members or associates are permitted to take such medications or

18

be housed within the CDCR’s mental health programs. (Id. at 32-

19

33.)

20

conclusion that any external factor or conduct related to his

21

mental condition excused his procedural default.

22
23
24

Petitioner’s allegations are general and do not support a

It is concluded that Petitioner has not shown cause for his
procedural default.
C.

Miscarriage of Justice

25

A procedural default may be excused for a fundamental

26

miscarriage of justice, such as where a petitioner can show that

27

a constitutional violation has probably resulted in the

28

conviction of one who is actually innocent.
18

See, Murray v.

1

Carrier, 477 U.S. 478, 495-96 (1986).

2

showing of facts warranting a conclusion that there was a

3

fundamental miscarriage of justice.

4

Petitioner has made no

Accordingly, it is concluded that this Court’s review of

5

Petitioner’s petition is foreclosed by Petitioner’s procedural

6

default.

7

dismiss be granted.

It will thus be recommended that Respondent’s motion to

8

V.

9

Respondent argues that Petitioner’s claims should be

Exhaustion of State Court Remedies

10

dismissed because Petitioner did not exhaust his state court

11

remedies as to his claims.

12

Pursuant to the foregoing analysis, this Court has concluded

13

that Petitioner’s claims were procedurally defaulted.

14

conclusion essentially moots the issue of exhaustion of state

15

court remedies.

16

dispositive, and it is thus unnecessary to reach Respondent’s

17

additional argument that Petitioner did not exhaust state court

18

remedies as to his claims.

19

(9th Cir. 2011).

20
21

This

The procedural default determination is

Cooper v. Neven, 641 F.3d 322, 327-28

Alternatively, the Court concludes that Petitioner failed to
exhaust his state court remedies.

22

A petitioner who is in state custody and wishes to challenge

23

collaterally a conviction by a petition for writ of habeas corpus

24

must exhaust state judicial remedies.

25

The exhaustion doctrine is based on comity to the state court and

26

gives the state court the initial opportunity to correct the

27

state's alleged constitutional deprivations.

28

Thompson, 501 U.S. at 731; Rose v. Lundy, 455 U.S. 509, 518
19

28 U.S.C. § 2254(b)(1).

Coleman v.

1

(1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).

2

A petitioner can satisfy the exhaustion requirement by

3

providing the highest state court with the necessary jurisdiction

4

a full and fair opportunity to consider each claim before

5

presenting it to the federal court, and demonstrating that no

6

state remedy remains available.

7

275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir.

8

1996).

9

was given a full and fair opportunity to hear a claim if the

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

A federal court will find that the highest state court

10

petitioner has presented the highest state court with the claim's

11

factual and legal basis.

12

(1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10

13

(1992), superceded by statute as stated in Williams v. Taylor,

14

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

15

Duncan v. Henry, 513 U.S. 364, 365

Although non-exhaustion of remedies has been viewed as an

16

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

17

state judicial remedies were properly exhausted.

18

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

19

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

20

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

21

If available state court remedies have not been exhausted as to

22

all claims, a district court must dismiss a petition.

23

Lundy, 455 U.S. at 515-16.

24

28 U.S.C.

Rose v.

A claim must be fairly presented to the state’s highest

25

court through the appropriate procedures.

26

404 U.S. at 275.

27

highest court does not reach the merits of a claim because of the

28

procedural context in which it was presented.

See, Picard v. Connor,

A claim is not fairly presented if the state’s

20

See, e.g.,

1

Castille v. Peoples, 489 U.S. 346, 351 (1989) (holding that a

2

petitioner’s claims were not fairly presented where he presented

3

his claims to the highest state court for the first and only time

4

in petitions for allocatur, in which review of the merits was not

5

a matter of right, but rather was discretionary when there were

6

special and important reasons for review); Pitchess v. Davis, 421

7

U.S. 482, 488 (1975) (holding that a claim was not fairly

8

presented by filing pretrial petitions for a writ of prohibition

9

in the state intermediate and highest appellate courts where

10

state law established that a writ of prohibition was an

11

extraordinary writ whose use for pretrial review was normally

12

limited to questions of first impression and general importance,

13

the petitions were denied without opinion such that the denial

14

could not be fairly read as an adjudication on the merits of the

15

claim, and the denial did not bar raising the same points on

16

post-trial appellate review, which remained available); Roettgen

17

v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (holding that a claim

18

was not fairly presented by bypassing direct appeal or an

19

authorized mode of collateral attack that foreclosed habeas

20

corpus, and instead filing a petition for habeas corpus).

21

Here, the state courts did not reach the merits of

22

Petitioner’s claims, but rather denied his petitions for failure

23

to exhaust administrative remedies pursuant to a rule that

24

foreclosed judicial relief absent such exhaustion.

25

Petitioner’s failure to comply with the prison’s administrative

26

remedies foreclosed consideration of the merits of the petition.

27
28

Thus,

Accordingly, Petitioner failed to exhaust his state court
remedies.
21

1

In view of this conclusion, it is unnecessary to consider

2

Respondent’s claim that Petitioner failed to raise his ex post

3

facto claim in his petition to the California Supreme Court.

4

In summary, it is concluded that Respondent’s motion to

5

dismiss should be granted.

6

VI.

7

Assuming that the Court adopts the following recommendation

8

to grant the motion to dismiss, it must be considered whether to

9

issue a certificate of appealability.

10

Certificate of Appealability

Unless a circuit justice or judge issues a certificate of

11

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

12

from the final order in a habeas proceeding in which the

13

detention complained of arises out of process issued by a state

14

court.

15

U.S. 322, 336 (2003).

16

only if the applicant makes a substantial showing of the denial

17

of a constitutional right.

18

petitioner must show that reasonable jurists could debate whether

19

the petition should have been resolved in a different manner or

20

that the issues presented were adequate to deserve encouragement

21

to proceed further.

22

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

23

certificate should issue if the Petitioner shows that jurists of

24

reason would find it debatable whether the petition states a

25

valid claim of the denial of a constitutional right and that

26

jurists of reason would find it debatable whether the district

27

court was correct in any procedural ruling.

28

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

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

22

A

Slack v. McDaniel,

1

In determining this issue, a court conducts an overview of

2

the claims in the habeas petition, generally assesses their

3

merits, and determines whether the resolution was debatable among

4

jurists of reason or wrong.

5

applicant to show more than an absence of frivolity or the

6

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

7

applicant to show that the appeal will succeed.

8

Cockrell, 537 U.S. at 338.

Id.

It is necessary for an

Miller-El v.

9

A district court must issue or deny a certificate of

10

appealability when it enters a final order adverse to the

11

applicant.

12

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

Here, it does not appear that reasonable jurists could

13

debate whether the petition should have been resolved in a

14

different manner.

15

of the denial of a constitutional right.

16
17

Petitioner has not made a substantial showing

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

18

VII.

19

Accordingly, it is RECOMMENDED that:

20

1) Respondent’s motion to dismiss the petition be GRANTED;

21

Recommendations

and

22

2) The petition be DISMISSED; and

23

3) The Court DECLINE to issue a certificate of

24

appealability; and

25

4) The Clerk be DIRECTED to close the case.

26

These findings and recommendations are submitted to the

27

United States District Court Judge assigned to the case, pursuant

28

to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
23

1

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

2

Eastern District of California.

3

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

4

with the Court and serve a copy on all parties.

5

should be captioned “Objections to Magistrate Judge’s Findings

6

and Recommendations.”

7

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

8

served by mail) after service of the objections.

9

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

Within thirty (30) days after

Such a document

Replies to the objections shall be served

The Court will

10

§ 636 (b)(1)(C).

11

objections within the specified time may waive the right to

12

appeal the District Court’s order.

13

1153 (9th Cir. 1991).

14
15

The parties are advised that failure to file

Martinez v. Ylst, 951 F.2d

IT IS SO ORDERED.
Dated:
10c20k

October 22, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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