Pham v. Jerry Powers

Filing 22

ORDER Regarding Respondent's 18 Motion to Dismiss, signed by Magistrate Judge Michael J. Seng on 9/23/2013. Amended Petition Due Within Thirty Days. (Marrujo, C)

1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10
11

Case No. 1:13-cv-00656 MJS (HC)
PAUL KIET PHAM,
Petitioner,

12

ORDER REGARDING RESPONDENT’S
MOTION TO DISMISS

v.

13

[Doc. 18]
14
15

JERRY POWERS,
Respondent.

16
17
18

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant

19

to 28 U.S.C. § 2254. Respondent is represented in this action by William K. Kim, of the

20

Office of the Attorney General for the State of California. Both parties have consented to

21

Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 6, 17.)

22

I.

BACKGROUND

23

Petitioner is currently in the custody of the California Department of Corrections

24

pursuant to a judgment of the Superior Court of California, County of Madera, following

25

his December 1, 2010 conviction of communicating with a minor with the intent to

26

commit oral copulation, and annoying or molesting a minor. Petitioner was sentenced to

27

120 days in jail, and required to register as a sex offender under California law.

28

Petitioner thereafter appealed the conviction. On February 15, 2012, the
1

1

California Court of Appeal, Fifth Appellate District affirmed the Judgment. (Mot. to

2

Dismiss, Ex. 1.) The California Supreme Court summarily denied review on May 9, 2012.

3

(Id., Ex 2.)

4
5

On May 6, 2013, Petitioner filed the instant petition for writ of habeas corpus in
this Court raising four different claims for relief, as follows:

6

1) admission of testimony that Petitioner asked if there was a “brothel” violated

7

due process;

8

2) requiring mandatory sex offender registration for sections 288.3(a)/288a

9

conviction violated the equal protection clause;

10

3) requiring mandatory sex offender registration for section 647.6(a) conviction

11

violated the equal protection clause;

12

4) denial of effective assistance of counsel for either not advising him that he

13

could testify, or not advising him to testify.

14

(Pet. at 4-7, ECF No. 1.)

15

On August 28, 2013, Respondent filed a motion to dismiss based on Petitioner’s

16

failure to exhaust claim four of the petition. (Mot. To Dismiss, ECF No. 18.) Petitioner

17

filed an opposition to the motion to dismiss on September 17, 2013. (Opp'n., ECF No.

18

21.)

19

II.

DISCUSSION

20

A.

Procedural Grounds for Motion to Dismiss

21

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

22

dismiss a petition if it “plainly appears from the petition and any attached exhibits that the

23

petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing

24

Section 2254 Cases.

25

The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an

26

answer if the motion attacks the pleadings for failing to exhaust state remedies or being

27

in violation of the state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418,

28

420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to
2

1

exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using

2

Rule 4 as procedural grounds to review motion to dismiss for state procedural default);

3

Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Based on the

4

Rules Governing Section 2254 Cases and case law, the Court will review Respondent’s

5

motion for dismissal pursuant to its authority under Rule 4.

6

B.

Exhaustion of State Remedies

7

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

8

conviction by a petition for writ of habeas corpus must exhaust state judicial remedies.

9

28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court

10

and gives the state court the initial opportunity to correct the state's alleged constitutional

11

deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455

12

U.S. 509, 518 (1982).

13

A petitioner can satisfy the exhaustion requirement by providing the highest state

14

court with a full and fair opportunity to consider each claim before presenting it to the

15

federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S.

16

270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). Additionally, the

17

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

18

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

19

(9th Cir.2000), amended, 247 F.3d 904 (2001). In Duncan, the United States Supreme

20

Court reiterated the rule as follows:

21
22
23
24
25
26

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.

27
Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating:
28
3

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); . . . .

1
2
3
4
5
6
7

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.

8
9
10

Lyons, 232 F.3d at 668-669 (italics added).

11

As stated above, Petitioner raised four claims for relief in his petition. Respondent

12

contends that Petitioner's fourth claim for ineffective assistance of counsel was not

13

exhausted in state court. Petitioner, in his opposition, attempts to amend his petition to

14

remove the fourth claim for relief. The Court shall provide Petitioner the opportunity to

15

amend the petition. See Rose, 455 U.S. at 521-22; Jefferson v. Budge, 419 F.3d 1013,

16

1016 (9th Cir. 2005) (Courts must dismiss a mixed petition without prejudice to give

17

Petitioner an opportunity to exhaust the claim if he can do so.)

18

Petitioner has evinced a clear intent to file an amended petition removing the

19

fourth claim of the petition. While Petitioner attached a copy of the amended petition to

20

his opposition, for the sake of clarity, the Court shall require Petitioner to file another

21

copy of the amended petition by itself so as to provide the amended petition with its own

22

docket number and prevent confusion.

23

Based on Petitioner's amended petition removing the unexhausted claim from the

24

petition, Respondents motion to dismiss based on exhaustion is denied as moot.

25

III.

ORDER

26

Accordingly, IT IS HEREBY ORDERED that:

27

1. Respondent's Motion to Dismiss the Petition for Habeas Corpus is DENIED as

28

moot in light of the fully exhausted amended petition; and
4

1

2. Petitioner is required to file a copy of the amended petition with the Court within

2

thirty (30) days from the date of issuance of this order. Petitioner is forewarned

3

that failure to follow this order will result in dismissal of the petition pursuant to

4

Local Rule 110.

5
6

IT IS SO ORDERED.

7
Dated:
8

September 23, 2013

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:

9
ci4d6
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5