Tamplin v. Muniz

Filing 7

ORDER Requiring Petitioner To Submit Within Thirty (30) Days A Signed And Dated Declaration Concerning The Petition (Doc. 1 ), ORDER Granting Petitioner Leave To File A Motion To Amend The Petition And Name A Proper Respondent No Later Than Thirty ( 30) Days After The Date Of Service Of This Order, ORDER To Petitioner To Show Cause In Thirty (30) Days Why The Petition Should Not Be Dismissed For Petitioner's Failure To Exhaust State Court Remedies, signed by Magistrate Judge Sheila K. Oberto on 10/21/2012. (Petitioner's Declaration Deadline: 11/26/2012, Motion to Amend Deadline: 11/26/2012, Show Cause Response due by 11/26/2012)(Fahrney, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 DWIGHT TAMPLIN, JR., 11 Petitioner, 12 v. 13 K. BROWN, 14 Respondent. 15 16 17 ) ) ) ) ) ) ) ) ) ) ) ) 1:12-cv—01633-SKO-HC ORDER REQUIRING PETITIONER TO SUBMIT WITHIN THIRTY (30) DAYS A SIGNED AND DATED DECLARATION CONCERNING THE PETITION (Doc. 1) ORDER GRANTING PETITIONER LEAVE TO FILE A MOTION TO AMEND THE PETITION AND NAME A PROPER RESPONDENT NO LATER THAN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER ORDER TO PETITIONER TO SHOW CAUSE IN THIRTY (30) DAYS WHY THE PETITION SHOULD NOT BE DISMISSED FOR PETITIONER’S FAILURE TO EXHAUST STATE COURT REMEDIES 18 19 20 Petitioner is a state prisoner proceeding pro se and in 21 forma pauperis with a petition for writ of habeas corpus pursuant 22 to 28 U.S.C. § 2254. The matter has been referred to the 23 Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 24 302 and 303. Pending before the Court is Petitioner’s petition, 25 which was filed in this Court on October 4, 2012. 26 I. Background 27 Petitioner is an inmate of the Salinas Valley State Prison 28 1 1 (SVSP) serving a sentence of forty-five years to life imposed in 2 the Fresno County Superior Court pursuant to a conviction 3 sustained on or about January 23, 2006, of being an ex-felon in 4 possession of a firearm with a gang enhancement. 5 Petitioner challenges his conviction. In his 189-page 6 petition, Petitioner raises the following claims: 1) trial 7 counsel’s failure to make motions constituted the ineffective 8 assistance of counsel in violation of Petitioner’s rights under 9 the Sixth Amendment (pet., doc. 1, 5-10); 2) trial counsel’s 10 failure to investigate and call defense witnesses constituted 11 ineffective assistance of counsel in violation of Petitioner’s 12 rights under the Sixth Amendment (id. at 11-89); 3) appellate 13 counsel’s failure to raise the denial of Petitioner’s Faretta 14 motion constituted ineffective assistance of counsel (id. at 39- 15 130); 4) allowing a statement allegedly made by Petitioner into 16 evidence as an element of a gang enhancement constituted a 17 violation of Petitioner’s protection against self-incrimination 18 under the Fifth Amendment and a Miranda violation because 19 Petitioner had not waived his rights (id. at 131-47); 5) trial 20 counsel’s failure to prepare for evidentiary issues concerning 21 gang affiliation and to consult Petitioner concerning his defense 22 violated Petitioner’s right under the Sixth Amendment to the 23 effective assistance of counsel (id. at 148-51); and 6) the trial 24 court’s failure to bifurcate gang enhancement allegations and the 25 remainder of the trial constituted an abuse of discretion and a 26 violation of Petitioner’s right to due process under the Fifth 27 Amendment (id. at 152-86). 28 /// 2 1 II. 2 Rule 4 of the Rules Governing § 2254 Cases in the United Screening the Petition 3 States District Courts (Habeas Rules) requires the Court to make 4 a preliminary review of each petition for writ of habeas corpus. 5 The Court must summarily dismiss a petition "[i]f it plainly 6 appears from the petition and any attached exhibits that the 7 petitioner is not entitled to relief in the district court....” 8 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 9 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 10 1990). 11 grounds of relief available to the Petitioner; 2) state the facts 12 supporting each ground; and 3) state the relief requested. 13 Notice pleading is not sufficient; rather, the petition must 14 state facts that point to a real possibility of constitutional 15 error. 16 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 17 Allison, 431 U.S. 63, 75 n. 7 (1977)). 18 that are vague, conclusory, or palpably incredible are subject to 19 summary dismissal. 20 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 at 491. The Court may dismiss a petition for writ of habeas corpus 21 either on its own motion under Habeas Rule 4, pursuant to the 22 respondent's motion to dismiss, or after an answer to the 23 petition has been filed. 24 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 25 (9th Cir. 2001). 26 not be dismissed without leave to amend unless it appears that no 27 tenable claim for relief can be pleaded were such leave granted. 28 Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). Advisory Committee Notes to Habeas Rule However, a petition for habeas corpus should 3 1 III. 2 Failure to Sign and Date the Petition and to Verify the Contents of the Petition to Be True under Penalty of Perjury 3 A review of the petition shows that Petitioner did not sign 4 or date the petition. 5 under penalty of perjury. 6 Further, the petition is not verified Local Rule 131 requires a document submitted to the Court 7 for filing to include an original signature. 8 Rule 2 requires a petition for writ of habeas corpus to “be 9 signed under penalty of perjury by the petitioner.” 10 In addition, Habeas In light of the difficulty in having Petitioner submit a new 11 habeas corpus petition, Petitioner will be ordered to submit a 12 separate document stating that he submitted the previously filed 13 petition to the Court and verifying its contents to be true under 14 penalty of perjury of the laws of the United States. 15 must sign the document under penalty of perjury; the document 16 should contain an original signature. Petitioner must state the 17 date on which he signed the document. Petitioner will be granted 18 thirty (30) days from the date of service of this order to comply 19 with the Court’s directive. 20 Petitioner Petitioner is forewarned that failure to comply with a Court 21 order will result in dismissal of the petition pursuant to Local 22 Rule 110. 23 IV. 24 Petitioner named as Respondent “K. Brown.” Failure to Name a Proper Respondent (Pet. 1.) The 25 official website of the California Department of Corrections and 26 Rehabilitation (CDCR) reflects that the warden at SVSP, where 27 28 4 1 2 Petitioner is incarcerated, is Randy Grounds.1 A petitioner seeking habeas corpus relief under 28 U.S.C. 3 § 2254 must name the state officer having custody of him as the 4 respondent to the petition. 5 Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California 6 Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). 7 person having custody of an incarcerated petitioner is the warden 8 of the prison in which the petitioner is incarcerated because the 9 warden has "day-to-day control over" the petitioner and thus can Habeas Rule 2(a); Ortiz-Sandoval v. Generally, the 10 produce the petitioner. 11 378, 379 (9th Cir. 1992); see also, Stanley v. California Supreme 12 Court, 21 F.3d 359, 360 (9th Cir. 1994). 13 officer in charge of state penal institutions, such as the 14 Secretary of the CDCR, is also appropriate. 15 F.3d at 894; Stanley, 21 F.3d at 360. 16 Brittingham v. United States, 982 F.2d However, the chief Ortiz-Sandoval, 81 Petitioner’s failure to name a proper respondent may require 17 dismissal of his habeas petition for a failure to name a person 18 who can produce the petitioner in response to an order of the 19 Court and thereby to secure personal jurisdiction. 20 Idaho, 392 F.3d 350, 355 n.3 (9th Cir. 2004). 21 ask sua sponte whether the respondent who is named has the power 22 to order petitioner’s release. 23 effective relief, and thus it should not hear the case unless the See, Smith v. This Court must If not, the Court may not grant 24 25 26 27 28 1 The Court may take judicial notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, including undisputed information posted on official websites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir. 2010). The address of the official website for the CDCR is http://www.cdcr.ca.gov. 5 1 petition is amended to name a respondent who can grant the 2 desired relief. 3 Id. The Court will give Petitioner the opportunity to cure this 4 defect by amending the petition to name a proper respondent, such 5 as the warden of his facility. 6 893-94 (9th Cir. 2004). 7 Petitioner need not file an amended petition. 8 Petitioner may file a motion entitled "Motion to Amend the 9 Petition to Name a Proper Respondent" in which Petitioner may 10 11 See, In re Morris, 363 F.3d 891, In the interest of judicial economy, Instead, name the proper respondent in this action. Petitioner is forewarned that failure to amend the petition 12 and state a proper respondent will result in dismissal of the 13 petition for failure to follow an order of the Court pursuant to 14 Local Rule 110, and for failure to name as respondent a person 15 with the power to produce the petitioner. 16 V. 17 A petitioner who is in state custody and wishes to challenge 18 collaterally a conviction by a petition for writ of habeas corpus 19 must exhaust state judicial remedies. 20 The exhaustion doctrine is based on comity to the state court and 21 gives the state court the initial opportunity to correct the 22 state's alleged constitutional deprivations. 23 Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 24 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 25 1988). Exhaustion of State Court Remedies 28 U.S.C. § 2254(b)(1). Coleman v. 26 A petitioner can satisfy the exhaustion requirement by 27 providing the highest state court with the necessary jurisdiction 28 a full and fair opportunity to consider each claim before 6 1 presenting it to the federal court, and demonstrating that no 2 state remedy remains available. 3 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 4 1996). 5 was given a full and fair opportunity to hear a claim if the 6 petitioner has presented the highest state court with the claim's 7 factual and legal basis. 8 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 9 (1992), superceded by statute as stated in Williams v. Taylor, 10 11 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 12 state court that he was raising a federal constitutional claim. 13 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 14 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala 15 v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 16 133 F.3d 1240, 1241 (9th Cir. 1998). 17 States Supreme Court reiterated the rule as follows: 18 19 20 21 22 23 24 25 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. 26 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule 27 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 28 7 1 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 2 Cir. 2001), stating: 3 4 5 6 7 8 9 10 11 12 13 14 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. ... 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. 15 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 16 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 17 2001). 18 Where none of a petitioner’s claims has been presented to 19 the highest state court as required by the exhaustion doctrine, 20 the Court must dismiss the petition. Raspberry v. Garcia, 448 21 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 22 481 (9th Cir. 2001). The authority of a court to hold a mixed 23 petition in abeyance pending exhaustion of the unexhausted claims 24 has not been extended to petitions that contain no exhausted 25 claims. Raspberry, 448 F.3d at 1154. 26 Petitioner states that he appealed the judgment and filed a 27 petition for review in the California Supreme Court. 28 8 (Pet. 2.) 1 Petitioner also states that he filed a petition for writ of 2 habeas corpus in the Fresno County Superior Court, in which he 3 raised ineffective assistance of counsel, a Miranda violation, 4 abuse of discretion, and sufficiency of the evidence. 5 3.) 6 proceedings all the issues that he seeks to raise in his petition 7 here. 8 issues before the California Supreme Court. 9 specifically describe the proceedings in the state courts in (Id. at 2- However, Petitioner has not alleged that he raised in those Further, he does not allege that he has raised all his Petitioner does not 10 which he exhausted his claims. 11 instant petition for writ of habeas corpus, it appears that 12 Petitioner has not presented all his claims to the California 13 Supreme Court. 14 to the California Supreme Court, the Court cannot proceed to the 15 merits of those claims. 28 U.S.C. § 2254(b)(1). 16 however, that Petitioner has presented his claims to the 17 California Supreme Court and simply neglected to inform this 18 Court. 19 Therefore, upon review of the If Petitioner has not presented all of his claims It is possible, Thus, Petitioner must inform the Court if his claims have 20 been presented to the California Supreme Court, and if possible, 21 provide the Court with a copy of the petition filed in the 22 California Supreme Court, along with a copy of any ruling made by 23 the California Supreme Court. 24 been presented to the California Supreme Court, the Court is 25 unable to proceed to the merits of the petition. 26 Without knowing what claims have Accordingly, Petitioner will be ordered to show cause why 27 the petition should not be dismissed for Petitioner’s failure to 28 exhaust state remedies. Petitioner will be ordered to inform the 9 1 Court what claims have been presented to the California Supreme 2 Court within thirty (30) days. 3 Petitioner is forewarned that failure to follow this order 4 will result in dismissal of the petition pursuant to Local Rule 5 110. 6 VI. 7 Accordingly, it is ORDERED that: 8 1) Petitioner shall SUBMIT no later than thirty (30) days 9 Disposition after the date of service of this order a signed and dated, 10 separate document stating that he submitted the habeas corpus 11 petition to the Court and verifying its contents to be true under 12 penalty of perjury of the laws of the United States; and 13 2) Petitioner is GRANTED thirty (30) days from the date of 14 service of this order in which to file a motion to amend the 15 instant petition and name a proper respondent; and 16 3) Petitioner is ORDERED to show cause why the petition 17 should not be dismissed for Petitioner’s failure to exhaust state 18 remedies. 19 have been presented to the California Supreme Court within thirty 20 (30) days of the date of service of this order. Petitioner is ORDERED to inform the Court what claims 21 22 23 IT IS SO ORDERED. 24 Dated: ie14hj October 21, 2012 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 25 26 27 28 10

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