Miale v. Superior Court of Tuolumne et al

Filing 7

ORDER DISMISSING PETITION for Lack of Exhaustion; ORDER DIRECTING Clerk of the Court to Enter Judgment and Close the File; and ORDER DECLINING to Issue a Certificate of Appealability, signed by Magistrate Judge Jennifer L. Thurston on 10/17/2012. CASE CLOSED. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17

)
)
Petitioner,
)
)
v.
)
SUPERIOR COURT OF TUOLUMNE, et al., )
)
)
Respondents.
)
)
)
MARTIN ROSS MIALE,

18
19

Case No.: 1:12-cv-01358-JLT
ORDER DISMISSING PETITION FOR LACK OF
EXHAUSTION (Doc. 1)
ORDER DIRECTING CLERK OF THE COURT TO
ENTER JUDGMENT AND CLOSE THE FILE
ORDER DECLINING TO ISSUE A CERTIFICATE
OF APPEALABILITY

Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.

20

PROCEDURAL HISTORY

21

The instant petition was filed on August 20, 2012. (Doc. 1). On August 29, 2012, Petitioner

22

filed his written consent to the jurisdiction of the United States Magistrate Judge for all purposes.

23

(Doc. 4). A preliminary review of the petition has established that none of the claims in the petition

24

have been exhausted in state court. Therefore, the petition must be dismissed.

25

///

26

///

27

///

28
1

DISCUSSION

1
2

A. Preliminary Review of Petition.

3

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition

4

if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is

5

not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The

6

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

7

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

8

an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001).

9
10

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

11

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

12

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

13

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

14

722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163

15

(9th Cir. 1988).

16

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

17

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

18

Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88

19

F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full

20

and fair opportunity to hear a claim if the petitioner has presented the highest state court with the

21

claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504

22

U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis).

23

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

24

federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th

25

Cir. 2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999);

26

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

27

reiterated the rule as follows:

28
2

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.

1
2
3
4
5
6

Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating:
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); . . . .

7
8
9
10
11
12

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.

13
14
15

Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added).
Here, the petition alleges, under penalty of perjury, that Petitioner is challenging as many as

16
17

seven criminal convictions in the Tuolumne County Superior Court. (Doc. 1, p. 2). The petition

18

further alleges that Petitioner was convicted on these various cases on April 22, 2012 and sentenced on

19

July 3, 2012, to a term of six months, the various sentences to be served concurrently. (Id.).

20

Petitioner’s expected release date is September 30, 2012. (Id.). Petitioner acknowledges that he has

21

not filed any direct appeals from these convictions. (Doc. 1, p. 5).1

22

From the foregoing, the Court concludes that Petitioner has not presented any of his claims to

23

the California Supreme Court as required by the exhaustion doctrine. Because Petitioner has not

24

presented his claims for federal relief to the California Supreme Court, the Court must dismiss the

25

petition. See Calderon v. United States Dist. Court, 107 F.3d 756, 760 (9th Cir. 1997) (en banc);

26
27
28

1

Petitioner indicates that he filed two “writs,” without specifying the nature of the writs nor the relief sought. (Doc. 1, p.
5). Petitioner also does not indicate the outcome, if any, of those two writs.

3

1

Greenawalt v. Stewart, 105 F.3d 1268, 1273 (9th Cir. 1997). The Court cannot consider a petition that

2

is entirely unexhausted. Rose v. Lundy, 455 U.S. 509, 521-22 (1982); Calderon, 107 F.3d at 760.

3

Therefore, the petition must be dismissed for lack of exhaustion.

4

Moreover, the Court declines to issue a certificate of appealability. A state prisoner seeking a

5

writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and

6

an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-336

7

(2003). The controlling statute in determining whether to issue a certificate of appealability is 28

8

U.S.C. § 2253, which provides as follows:

9
10
11
12
13
14
15
16
17
18
19

(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge,
the final order shall be subject to review, on appeal, by the court of appeals for the circuit
in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a
warrant to remove to another district or place for commitment or trial a person charged
with a criminal offense against the United States, or to test the validity of such person's
detention pending removal proceedings.
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not
be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made
a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).

20
21

If a court denied a petitioner’s petition, the court may only issue a certificate of appealability

22

when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. §

23

2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists could

24

debate whether (or, for that matter, agree that) the petition should have been resolved in a different

25

manner or that the issues presented were ‘adequate to deserve encouragement to proceed further’.”

26

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

27

In the present case, the Court finds that Petitioner has not made the required substantial

28
4

1

showing of the denial of a constitutional right to justify the issuance of a certificate of appealability.

2

Reasonable jurists would not find the Court’s determination that Petitioner is not entitled to federal

3

habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Thus, the

4

Court DECLINES to issue a certificate of appealability.
ORDER

5

For the foregoing reasons, the Court HEREBY ORDERS as follows:

6
7

1. The petition for writ of habeas corpus (Doc. 1), is DISMISSED for lack of exhaustion;

8

2. The Clerk of the Court is DIRECTED to enter judgment and close the file; and,

9

3. The Court DECLINES to issue a certificate of appealability.

10
11
12

IT IS SO ORDERED.

13
14
15

Dated:

October 17, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

9j7khijed

16
17
18
19
20
21
22
23
24
25
26
27
28
5