Zayas v. Harris
Filing
15
ORDER Allowing Petitioner to File a Motion to Withdraw Grounds Three and Seven as Unexhausted, signed by Magistrate Judge Jennifer L. Thurston on 5/9/14. 30-Day Deadline. (Verduzco, M)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
12
13
14
15
)
)
)
)
)
)
)
)
)
RODNEY ZAYAS,
Petitioner,
v.
KAMALA D. HARRIS, et al.,
Respondents.
Case No.: 1:13-cv-01863-LJO-JLT
ORDER ALLOWING PETITIONER TO FILE A
MOTION TO WITHDRAW GROUNDS THREE
AND SEVEN AS UNEXHAUSTED
THIRTY DAY DEADLINE
16
17
18
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
19
PROCEDURAL HISTORY
20
The instant petition was filed on November 18, 2013. On November 20, 2013, the Court
21
ordered Respondent to file a response to the petition within sixty days. (Doc. 4). After requesting and
22
receiving an extension of time, Respondent filed the instant motion to dismiss on February 19, 2014,
23
contending that some of the claims in the instant petition are unexhausted. (Doc. 12). Respondent
24
argues that should Petitioner fail to withdraw those unexhausted claims, the Court should dismiss the
25
petition. (Id.). Petitioner has not filed an opposition to the motion to dismiss.
26
DISCUSSION
27
A. Procedural Grounds for Motion to Dismiss
28
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition
1
1
if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is
2
not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases.
3
Moreover, the Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if
4
the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state’s
5
procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to
6
evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d
7
599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state
8
procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus,
9
a Respondent can file a motion to dismiss after the court orders a response, and the Court should use
10
Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.
In this case, Respondent’s Motion to Dismiss is based on the contention that Petitioner has
11
12
never presented one or more of his claims to the California Supreme Court. Accordingly, the Court
13
will review Respondent’s Motion to Dismiss pursuant to its authority under Rule 4. O’Bremski, 915
14
F.2d at 420.
15
I.
16
Exhaustion
A petitioner who is in state custody and wishes to collaterally challenge his conviction by a
17
petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The
18
exhaustion doctrine is based on comity to the state court and gives the state court the initial
19
opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S.
20
722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th
21
Cir. 1988).
22
A petitioner can satisfy the exhaustion requirement by providing the highest state court with a
23
full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v.
24
Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88
25
F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full
26
and fair opportunity to hear a claim if the petitioner has presented the highest state court with the
27
claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504
28
U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis).
2
1
Additionally, the petitioner must have specifically told the state court that he was raising a
2
federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th
3
Cir. 2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999);
4
Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). In Duncan, the United States Supreme Court
5
reiterated the rule as follows:
6
7
8
9
10
11
12
13
14
15
16
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.
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); . . . .
17
18
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.
19
20
Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons v.
21
Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001).
22
Where none of a petitioner’s claims has been presented to the highest state court as required by
23
the exhaustion doctrine, the Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154
24
(9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The authority of a court to hold a
25
mixed petition in abeyance pending exhaustion of the unexhausted claims has not been extended to
26
petitions that contain no exhausted claims. Raspberry, 448 F.3d at 1154.
27
28
Here, the instant petition raises nine grounds for relief. Respondent has lodged documents
with the Court establishing that seven of those claims were exhausted when Petitioner filed a petition
3
1
for review in the California Supreme Court and a state habeas petition. (Doc. 13, Lodged Document
2
(“LD”) 4; 6). However, those same documents establish that Petitioner has never presented two
3
claims, i.e., grounds three and seven, to the state high court. Despite having an opportunity to respond
4
to this contention, Petitioner has not responded.
5
Therefore, based on the foregoing, the Court concludes that Petitioner has not presented
6
grounds three and seven in the instant petition to the California Supreme Court as required by the
7
exhaustion doctrine. Because Petitioner has not presented his claims for federal relief to the California
8
Supreme Court, either Petitioner must voluntarily withdraw those unexhausted claims or the Court
9
must grant Respondent’s motion to dismiss and dismiss the entire petition as a mixed petition. See
10
Calderon v. United States Dist. Court, 107 F.3d 756, 760 (9th Cir. 1997) (en banc); Greenawalt v.
11
Stewart, 105 F.3d 1268, 1273 (9th Cir. 1997).
ORDER
12
13
For the foregoing reasons, it is HEREBY ORDRED that Petitioner has thirty days within
14
which to file a motion to withdraw grounds three and seven as unexhausted. If Petitioner fails to
15
request withdrawal of the unexhausted claims, the Court will issue a recommendation that
16
Respondent’s motion to dismiss the petition be granted.
17
18
19
20
IT IS SO ORDERED.
Dated:
May 9, 2014
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
21
22
23
24
25
26
27
28
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?