Mooney v. County of Kern
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition Without Prejudice for Failure to Exhaust State Court Remedies, Decline to Issue a Certificate of Appealability, and Direct the Clerk to Close Case, signed by Magistrate Judge Sheila K. Oberto on 11/13/13. Referred to Judge Ishii. Thirty-Day Objections Deadline. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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11 DAVID T. MOONEY,
Case No. 1:13-cv-01419-AWI-SKO-HC
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FINDINGS AND RECOMMENDATIONS
TO DISMISS THE PETITION WITHOUT
PREJUDICE FOR FAILURE TO EXHAUST
STATE COURT REMEDIES (DOC. 1),
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND DIRECT THE CLERK
TO CLOSE THE CASE
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Petitioner,
v.
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15 COUNTY OF KERN,
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Respondent.
OBJECTIONS DEADLINE:
THIRTY (30) DAYS
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Petitioner is a state prisoner proceeding pro se and in forma
20 pauperis with a petition for writ of habeas corpus pursuant to 28
21 U.S.C. § 2254. The matter has been referred to the Magistrate Judge
22 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.
23 Pending before the Court is the petition, which was filed on
24 September 5, 2013.
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I.
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Rule 4 of the Rules Governing § 2254 Cases in the United States
Screening the Petition
27 District Courts (Habeas Rules) requires the Court to make a
28 preliminary review of each petition for writ of habeas corpus.
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The
1 Court must summarily dismiss a petition "[i]f it plainly appears
2 from the petition and any attached exhibits that the petitioner is
3 not entitled to relief in the district court....”
Habeas Rule 4;
4 O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also
5 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).
Habeas Rule
6 2(c) requires that a petition 1) specify all grounds of relief
7 available to the Petitioner; 2) state the facts supporting each
8 ground; and 3) state the relief requested.
Notice pleading is not
9 sufficient; the petition must state facts that point to a real
10 possibility of constitutional error.
Rule 4, Advisory Committee
11 Notes, 1976 Adoption; O’Bremski v. Maass, 915 F.2d at 420 (quoting
12 Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)).
Allegations in
13 a petition that are vague, conclusory, or palpably incredible are
14 subject to summary dismissal.
Hendricks v. Vasquez, 908 F.2d at
15 491.
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The Court may dismiss a petition for writ of habeas corpus
17 either on its own motion under Habeas Rule 4, pursuant to the
18 respondent's motion to dismiss, or after an answer to the petition
19 has been filed.
Advisory Committee Notes to Habeas Rule 8, 1976
20 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir.
21 2001).
A petition for habeas corpus, however, should not be
22 dismissed without leave to amend unless it appears that no tenable
23 claim for relief can be pleaded were such leave granted.
Jarvis v.
24 Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
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Petitioner is an inmate of the Ironwood State Prison (ISP) who
26 alleges he is serving a sentence of one year and four months for a
27 violation of Cal. Pen. Code § 4573.8 imposed in the Superior Court
28 of the State of California, County of Kern, pursuant to his plea of
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1 nolo contendere entered as part of a plea agreement.
Petitioner
2 challenges his sentence and alleges the following claims in the
3 petition: 1) records show that Petitioner did not agree to a second
4 strike; and 2) Petitioner is serving a longer sentence than he
5 agreed to pursuant to the plea agreement.
(Pet., doc. 1, 4.)
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II.
Failure to Exhaust State Court Remedies
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A petitioner who is in state custody and wishes to challenge
8 collaterally a conviction by a petition for writ of habeas corpus
9 must exhaust state judicial remedies.
28 U.S.C. ' 2254(b)(1).
The
10 exhaustion doctrine is based on comity to the state court and gives
11 the state court the initial opportunity to correct the state's
12 alleged constitutional deprivations.
Coleman v. Thompson, 501 U.S.
13 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v.
14 Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).
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A petitioner can satisfy the exhaustion requirement by
16 providing the highest state court with the necessary jurisdiction a
17 full and fair opportunity to consider each claim before presenting
18 it to the federal court, and demonstrating that no state remedy
19 remains available.
Picard v. Connor, 404 U.S. 270, 275-76 (1971);
20 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996).
A federal court
21 will find that the highest state court was given a full and fair
22 opportunity to hear a claim if the petitioner has presented the
23 highest state court with the claim's factual and legal basis.
24 Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v.
25 Tamayo-Reyes, 504 U.S. 1, 9-10 (1992), superceded by statute as
26 stated in Williams v. Taylor, 529 U.S. 362 (2000) (factual basis).
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Additionally, the petitioner must have specifically informed
28 the state court that he was raising a federal constitutional claim.
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1 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669
2 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v.
3 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d
4 1240, 1241 (9th Cir. 1998).
In Duncan, the United States Supreme
5 Court 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= 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.
16 Duncan, 513 U.S. at 365-366.
The Ninth Circuit examined the rule
17 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000),
18 as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir.
19 2001), 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, see, e.g., Hiivala v. Wood, 195
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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.
7 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended
8 by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001).
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Where none of a petitioner=s claims has been presented to the
10 highest state court as required by the exhaustion doctrine, the
11 Court must dismiss the petition.
Rasberry v. Garcia, 448 F.3d 1150,
12 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir.
13 2001).
The authority of a court to hold a mixed petition in
14 abeyance pending exhaustion of the unexhausted claims has not been
15 extended to petitions that contain no exhausted claims.
Rasberry,
16 448 F.3d at 1154.
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Petitioner states that he did not file an appeal from the
18 judgment of conviction, and he has not filed any applications or
19 petitions in any other courts.
(Pet., doc. 1 at 2-3, 5.)
Thus, he
20 admits he has not exhausted state court remedies as to any of the
21 claims stated in the petition before the Court.
Although non-
22 exhaustion of state court remedies has been viewed as an affirmative
23 defense, it is the petitioner’s burden to prove that state judicial
24 remedies were properly exhausted.
28 U.S.C. § 2254(b)(1)(A);
Darr
25 v. Burford, 339 U.S. 200, 218-19 (1950), overruled in part on other
26 grounds in Fay v. Noia, 372 U.S. 391 (1963); Cartwright v. Cupp, 650
27 F.2d 1103, 1104 (9th Cir. 1981).
If available state court remedies
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1 have not been exhausted as to all claims, a district court must
2 dismiss a petition.
Rose v. Lundy, 455 U.S. 509, 515-16 (1982).
Here, Petitioner’s petition is premature because he admits he
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4 has not submitted his claim or claims to the California Supreme
5 Court for a ruling.
Further, a search of the official website of
6 the California Supreme Court reflects no information to show that
7 Petitioner has presented his claims to the California Supreme Court.
Based on the foregoing, Petitioner has failed to meet its
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9 burden of establishing exhaustion of state court remedies, and the
10 petition should be dismissed without prejudice for failure to exhaust
11 state court remedies.
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III.
Certificate of Appealability
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Unless a circuit justice or judge issues a certificate of
14 appealability, an appeal may not be taken to the Court of Appeals
15 from the final order in a habeas proceeding in which the detention
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A dismissal for failure to exhaust is not a dismissal on the merits, and
18 Petitioner will not be barred by the prohibition against filing second habeas
petitions set forth in 28 U.S.C. § 2244(b) from returning to federal court after
See, In re Turner, 101 F.3d 1323
(9th Cir. 1996). However, the Supreme Court has held as follows:
19 Petitioner exhausts available state remedies.
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[I]n the habeas corpus context is would be appropriate for
an order dismissing a mixed 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).
Slack v. McDaniel, 529 U.S. 473, 489 (2000).
Therefore, Petitioner is forewarned that in the event he returns to federal
27 court and files a mixed petition of both exhausted and unexhausted claims, the
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petition may be dismissed with prejudice.
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1 complained of arises out of process issued by a state court.
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2 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
3 (2003).
A certificate of appealability may issue only if the
4 applicant makes a substantial showing of the denial of a
5 constitutional right.
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' 2253(c)(2).
Under this standard, a petitioner must show that reasonable
7 jurists could debate whether the petition should have been resolved
8 in a different manner or that the issues presented were adequate to
9 deserve encouragement to proceed further.
Miller-El v. Cockrell,
10 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484
11 (2000)).
A certificate should issue if the Petitioner shows that
12 jurists of reason would find it debatable whether: (1) the petition
13 states a valid claim of the denial of a constitutional right, or (2)
14 the district court was correct in any procedural ruling.
15 McDaniel, 529 U.S. 473, 483-84 (2000).
Slack v.
In determining this issue, a
16 court conducts an overview of the claims in the habeas petition,
17 generally assesses their merits, and determines whether the
18 resolution was debatable among jurists of reason or wrong.
Id.
An
19 applicant must show more than an absence of frivolity or the
20 existence of mere good faith; however, the applicant need not show
21 the appeal will succeed.
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Miller-El v. Cockrell, 537 U.S. at 338.
A district court must issue or deny a certificate of
23 appealability when it enters a final order adverse to the applicant.
24 Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, it does
25 not appear that reasonable jurists could debate whether the petition
26 should have been resolved in a different manner.
Petitioner has not
27 made a substantial showing of the denial of a constitutional right.
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Accordingly, the Court should decline to issue a certificate of
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1 appealability.
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IV.
Recommendations
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Based on the foregoing, it is RECOMMENDED that:
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1)
The petition be DISMISSED without prejudice for
5 Petitioner’s failure to exhaust state court remedies;
2)
The Court DECLINE to issue a certificate of appealability;
3)
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The Clerk be DIRECTED to close the case because dismissal
7 and
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9 will terminate the proceeding in its entirety.
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These findings and recommendations are submitted to the United
11 States District Court Judge assigned to the case, pursuant to the
12 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
13 Rules of Practice for the United States District Court, Eastern
14 District of California.
Within thirty (30) days after being served
15 with a copy, any party may file written objections with the Court
16 and serve a copy on all parties.
Such a document should be
17 captioned AObjections to Magistrate Judge=s Findings and
18 Recommendations.@
Replies to the objections shall be served and
19 filed within fourteen (14) days (plus three (3) days if served by
20 mail) after service of the objections.
The Court will then review
21 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
22 The parties are advised that failure to file objections within the
23 specified time may waive the right to appeal the District Court=s
24 order.
Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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26 IT IS SO ORDERED.
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Dated:
November 13, 2013
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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