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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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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

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

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PROCEDURAL HISTORY

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The instant petition was filed on November 18, 2013. On November 20, 2013, the Court

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ordered Respondent to file a response to the petition within sixty days. (Doc. 4). After requesting and

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receiving an extension of time, Respondent filed the instant motion to dismiss on February 19, 2014,

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contending that some of the claims in the instant petition are unexhausted. (Doc. 12). Respondent

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argues that should Petitioner fail to withdraw those unexhausted claims, the Court should dismiss the

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petition. (Id.). Petitioner has not filed an opposition to the motion to dismiss.

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DISCUSSION

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A. Procedural Grounds for Motion to Dismiss

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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition
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if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is

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

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Moreover, the Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if

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the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state’s

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procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to

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evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d

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599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state

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procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus,

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a Respondent can file a motion to dismiss after the court orders a response, and the Court should use

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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

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never presented one or more of his claims to the California Supreme Court. Accordingly, the Court

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will review Respondent’s Motion to Dismiss pursuant to its authority under Rule 4. O’Bremski, 915

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F.2d at 420.

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I.

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

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

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

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

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722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th

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Cir. 1988).

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

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

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

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

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

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

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U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis).
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Additionally, the petitioner must have specifically told the state court that he was raising a

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

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

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

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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.
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); . . . .

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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.

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Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons v.

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Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001).

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Where none of a petitioner’s claims has been presented to the highest state court as required by

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the exhaustion doctrine, the Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154

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(9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The authority of a court to hold a

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mixed petition in abeyance pending exhaustion of the unexhausted claims has not been extended to

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petitions that contain no exhausted claims. Raspberry, 448 F.3d at 1154.

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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
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for review in the California Supreme Court and a state habeas petition. (Doc. 13, Lodged Document

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(“LD”) 4; 6). However, those same documents establish that Petitioner has never presented two

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claims, i.e., grounds three and seven, to the state high court. Despite having an opportunity to respond

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to this contention, Petitioner has not responded.

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Therefore, based on the foregoing, the Court concludes that Petitioner has not presented

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grounds three and seven in the instant petition to the California Supreme Court as required by the

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exhaustion doctrine. Because Petitioner has not presented his claims for federal relief to the California

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Supreme Court, either Petitioner must voluntarily withdraw those unexhausted claims or the Court

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must grant Respondent’s motion to dismiss and dismiss the entire petition as a mixed petition. See

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

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Stewart, 105 F.3d 1268, 1273 (9th Cir. 1997).
ORDER

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For the foregoing reasons, it is HEREBY ORDRED that Petitioner has thirty days within

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which to file a motion to withdraw grounds three and seven as unexhausted. If Petitioner fails to

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request withdrawal of the unexhausted claims, the Court will issue a recommendation that

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Respondent’s motion to dismiss the petition be granted.

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IT IS SO ORDERED.
Dated:

May 9, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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