Elias Castaneda v. M.C. Ewen

Filing 12

FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus (Doc. 1 ) be DISMISSED Without Prejudice, signed by Magistrate Judge Gary S. Austin on 4/9/2012. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ELIAS CASTANEDA,

1:11-CV-01672 AWI GSA HC

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Petitioner,

FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS

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v.
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M. C EWEN,

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

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On August 21, 2008, Petitioner was convicted in the Kern County Superior Court of second

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degree robbery with use of a deadly weapon. (See Pet. at 2.) On October 2, 2008, he was sentenced

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to serve a term of twenty-six years. (Id.) Petitioner appealed to the California Court of Appeal, Fifth

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Appellate District. (See Attachments to Pet.) On December 23, 2009, the appeal was affirmed. (Id.)

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Petitioner then filed a petition for review in the California Supreme Court. On March 10, 2010, the

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petition was denied. (Id.) On October 4, 2011, Petitioner filed the instant federal petition for writ of

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habeas corpus.

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DISCUSSION

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Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:

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If it plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss the petition and direct the clerk
to notify the petitioner.

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The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of

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habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to

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dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th

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Cir.2001).

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A petitioner who is in state custody and wishes to collaterally challenge his conviction by a

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petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The

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exhaustion doctrine is based on comity to the state court and gives the state court the initial

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opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501

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U.S. 722, 731, 111 S.Ct. 2546, 2554-55 (1991); Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198,

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

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A petitioner can satisfy the exhaustion requirement by providing the highest state court with a

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full and fair opportunity to consider each claim before presenting it to the federal court. Picard v.

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

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1996). A federal court will find that the highest state court was given a full and fair opportunity to

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hear a claim if the petitioner has presented the highest state court with the claim's factual and legal

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basis. Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S.

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1 (1992) (factual basis).

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Additionally, the petitioner must have specifically told the state court that he was raising a

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federal constitutional claim. 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 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999);

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Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In Duncan, the United States Supreme Court

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reiterated the rule as follows:

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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

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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 further, 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. Hiivala v. Wood,
195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31
(9th Cir. 1996); . . . .
In Johnson, we explained that the petitioner must alert the state court to
the fact that the relevant claim is a federal one without regard to how similar the
state and federal standards for reviewing the claim may be or how obvious the
violation of federal law is.

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Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added).
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In this case, Petitioner states he has sought relief in the California Supreme Court with
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respect to his first claim; however, he states he has not yet sought relief in the California Supreme
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Court as to his second claim. Comity and federalism requires Petitioner first present his claim to the
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state court to give the state court the initial opportunity to correct the state's alleged constitutional
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deprivations. Coleman, 501 U.S. at 731; Rose, 455 U.S. at 518. The instant petition is a mixed
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petition containing exhausted and unexhausted claims and must be dismissed. 28 U.S.C. §
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2254(b)(1).
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RECOMMENDATION
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Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be
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DISMISSED without prejudice.1 Petitioner is forewarned that there is a one year limitations period

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A dismissal for failure to exhaust is not a dismissal on the merits, and Petitioner will not be barred from returning
to federal court after Petitioner exhausts available state remedies by 28 U.S.C. § 2244 (b)’s prohibition on filing second
petitions. See In re Turner, 101 F.3d 1323 (9th Cir. 1996). However, the Supreme Court has held that:

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[I]n the habeas corpus context it would be appropriate for an order dismissing a mixed

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in which Petitioner must file a federal petition for writ of habeas corpus. 28 U.S.C. §2244(d)(1). In

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most cases, the one year period starts to run on the date the California Supreme Court denies

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Petitioner’s direct review. Rose v. Lundy, 455 U.S. 509, 521-522. The limitations period is tolled

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while a properly filed request for collateral review is pending in state court. 28 U.S.C. § 2244(d)(2).

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However, the limitations period is not tolled for the time such an application is pending in federal

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court. Duncan v. Walker, 531 U.S. 991 (2001).

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This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, United

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States District Court Judge, pursuant 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, Eastern District of California.

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Within thirty (30) days after being served with a copy, Petitioner may file written objections with the

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Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.

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§ 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
6i0kij

April 9, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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

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Slack v. McDaniel, 529 U.S. 473, 489 (2000). Therefore, Petitioner is forewarned that in the event he returns to federal court
and files a mixed petition of exhausted and unexhausted claims, the petition may be dismissed with prejudice.

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