Ruiz v. Fresno Superior Court

Filing 7

FINDINGS and RECOMMENDATION 1 , signed by Magistrate Judge Gary S. Austin on 5/20/14: Thirty (30) Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JORGE RUIZ,

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Petitioner,

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Case No. 1:14-cv-00112-LJO-GSA-HC
FINDINGS AND RECOMMENDATION

v.
FRESNO SUPERIOR COURT,

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Respondent.

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Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas

18 corpus pursuant to 28 U.S.C. § 2254.
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On January 27, 2014, Petitioner filed the instant petition for writ of habeas corpus. He

20 challenges a 2013 conviction sustained in Fresno County Superior Court for petty theft with a
21 prior.
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Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary

23 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it
24 plainly appears from the petition . . . that the petitioner is not entitled to relief." See Rule 4 of the
25 Rules Governing § 2254 Cases; Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). Otherwise,
26 the Court will order Respondent to respond to the petition. See Rule 5 of the Rules Governing §
27 2254 Cases.
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A petitioner who is in state custody and wishes to collaterally challenge his conviction by

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1 a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1).
2 The exhaustion doctrine is based on comity to the state court and gives the state court the initial
3 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501
4 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158,
5 1163 (9th Cir. 1988).
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A petitioner can satisfy the exhaustion requirement by providing the highest state court

7 with a full and fair opportunity to consider each claim before presenting it to the federal court.
8 Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971);
9 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest
10 state court was given a full and fair opportunity to hear a claim if the petitioner has presented the
11 highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis);
12 Kenney v. Tamayo-Reyes, 504 U.S. 1, 8-10 (1992) (factual basis).
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Additionally, the petitioner must have specifically told the state court that he was raising

14 a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666,
15 669 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th
16 Cir.1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In Duncan, the United States
17 Supreme 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.

24 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, 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 “selfevident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson
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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.

6 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000).
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In the instant petition, Petitioner states he has not sought review for his claims in the

8 California Supreme Court. Therefore, the petition is unexhausted and must be dismissed. 28
9 U.S.C. § 2254(b)(1).
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RECOMMENDATION

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Accordingly, the Court HEREBY RECOMMENDS that the petition for writ of habeas

12 corpus be DISMISSED without prejudice for failure to exhaust state remedies.
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This Findings and Recommendation is submitted to the Honorable Lawrence J. O’Neill,

14 United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B)
15 and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District
16 of California.
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Within thirty (30) days after being served with a copy, Petitioner may file written

18 objections with the Court. Such a document should be captioned “Objections to Magistrate
19 Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s
20 ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections
21 within the specified time may waive the right to appeal the District Court’s order. Martinez v.
22 Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:

May 20, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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