Butler v. Unknown

Filing 7

ORDER Dismissing the Petition for Writ of Habeas Corpus with Leave to File a First Amended Petition no Later than Thirty Days after the Date of Service of this Order, signed by Magistrate Judge Barbara A. McAuliffe on 5/15/14. (Attachments: # 1 Petition Form)(Verduzco, M)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10
11 KAREN BUTLER,

Case No. 1:14-cv-00645-BAM-HC

12

ORDER DISMISSING THE PETITION FOR
WRIT OF HABEAS CORPUS WITH LEAVE TO
FILE A FIRST AMENDED PETITION NO
LATER THAN THIRTY DAYS AFTER THE
DATE OF SERVICE OF THIS ORDER
(DOC. 1)

Petitioner,

13
14

v.

15

ORDER DIRECTING THE CLERK TO SEND
TO PETITIONER WITH THIS ORDER A
FORM PETITION PURSUANT TO 28 U.S.C.
§ 2254

16
17

UNKNOWN,
Respondent.

18

FILING DEADLINE:
THIRTY (30) DAYS

19
20
21
22
23
24
25
26
27
28

Petitioner is a state prisoner proceeding pro se and in forma
pauperis with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.

The matter has been referred to the Magistrate Judge

pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303.
Pending before the Court is the petition, which was filed on April
25, 2014, and transferred to this Court from the Sacramento Division
on May 1, 2014.
///
1

1

I.

Screening the Petition

2

Rule 4 of the Rules Governing ' 2254 Cases in the United States

3 District Courts (Habeas Rules) requires the Court to make a
4 preliminary review of each petition for writ of habeas corpus.

The

5 Court must summarily dismiss a petition "[i]f it plainly appears
6 from the petition and any attached exhibits that the petitioner is
7 not entitled to relief in the district court....@

Habeas Rule 4;

8 O=Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also
9 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).

Habeas Rule

10 2(c) requires that a petition 1) specify all grounds of relief
11 available to the Petitioner; 2) state the facts supporting each
12 ground; and 3) state the relief requested.

Notice pleading is not

13 sufficient; rather, the petition must state facts that point to a
14 real possibility of constitutional error.

Rule 4, Advisory

15 Committee Notes, 1976 Adoption; O=Bremski v. Maass, 915 F.2d at 420
16 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)).
17 Allegations in a petition that are vague, conclusory, or palpably
18 incredible are subject to summary dismissal.

Hendricks v. Vasquez,

19 908 F.2d at 491.
20

Further, the Court may dismiss a petition for writ of habeas

21 corpus either on its own motion under Habeas Rule 4, pursuant to the
22 respondent's motion to dismiss, or after an answer to the petition
23 has been filed.

Advisory Committee Notes to Habeas Rule 8, 1976

24 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir.
25 2001).
26

A petition for writ of habeas corpus should not be dismissed

27 without leave to amend unless it appears that no tenable claim for
28 relief can be pleaded were such leave granted.
2

Jarvis v. Nelson,

1 440 F.2d 13, 14 (9th Cir. 1971).
2

II.

Failure to Allege Facts Warranting Habeas Relief

3

Here, Petitioner alleges that she is an inmate of the

4 California Institution for Women located in Corona, California
5 (CIW), serving a sentence of four years imposed for a conviction
6 sustained in October 2011 in the Superior Court of the State of
7 California, County of Madera, which is within the territorial
8 boundaries of this district.
9 factual grounds for relief.

Petitioner does not state any legal or
Further, Petitioner has failed to name

10 a respondent, and she has not alleged that she exhausted state court
11 remedies.
12

Because the petition was filed after April 24, 1996, the

13 effective date of the Antiterrorism and Effective Death Penalty Act
14 of 1996 (AEDPA), the AEDPA applies to the petition.

Lindh v.

15 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484,
16 1499 (9th Cir. 1997).
17

A district court may entertain a petition for a writ of habeas

18 corpus by a person in custody pursuant to the judgment of a state
19 court only on the ground that the custody is in violation of the
20 Constitution, laws, or treaties of the United States.

28 U.S.C. ''

21 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7
22 (2000); Wilson v. Corcoran, 562 U.S. B, -, 131 S.Ct. 13, 16 (2010)
23 (per curiam).
24

The notice pleading standard applicable in ordinary civil

25 proceedings does not apply in habeas corpus cases; rather, Habeas
26 Rules 2(c), 4, and 5(b) require a more detailed statement of all
27 grounds for relief and the facts supporting each ground; the
28 petition is expected to state facts that point to a real possibility
3

1 of constitutional error and show the relationship of the facts to
2 the claim.

Habeas Rule 4, Advisory Committee Notes, 1976 Adoption;

3 Mayle v. Felix, 545 U.S. 644, 655 (2005); O=Bremski v. Maass, 915
4 F.2d 418, 420 (9th Cir. 1990) (quoting Blackledge v. Allison, 431
5 U.S. 63, 75 n.7 (1977)).

This is because the purpose of the rules

6 is to assist the district court in determining whether the
7 respondent should be ordered to show cause why the writ should not
8 be granted and to permit the filing of an answer that satisfies the
9 requirement that it address the allegations in the petition.
10 v. Felix, 545 U.S. at 655.

Mayle

Allegations in a petition that are

11 vague, conclusional, or palpably incredible, and that are
12 unsupported by a statement of specific facts, are insufficient to
13 warrant relief and are subject to summary dismissal.

Jones v.

14 Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); James v. Borg, 24 F.3d
15 20, 26 (9th Cir. 1994).
16

Here, Petitioner fails to allege any legal grounds for relief

17 or any specific facts in support of any claims.
18

Further, Petitioner has failed to allege facts that would

19 enable this Court to determine the appropriate venue of this action.
20 Pursuant to 28 U.S.C. § 2241(d), a state prisoner seeking relief
21 pursuant to § 2254 may proceed in either the district of conviction
22 or the district of confinement.

However, petitions challenging a

23 conviction preferably are heard in the district of conviction, Laue
24 v. Nelson, 279 F.Supp. 265, 266 (N.D.Cal. 1968); petitions
25 challenging execution of sentence are preferably heard in the
26 district where the inmate is confined, Dunne v. Henman, 875 F.2d
27 244, 249 (9th Cir. 1989).

A court should further consider

28 traditional considerations of venue, such as the convenience of
4

1 parties and witnesses and the interests of justice.

Braden v. 30th

2 Judicial Circuit Court of Kentucky, 410 U.S. 484, 495 (1973).
Here, the uncertainty of Petitioner’s claims has prevented the

3

4 Court from determining the correct venue for this action.
Because Petitioner has failed to include any statement of legal

5

6 grounds for relief or any supporting facts, her petition must be
7 dismissed.

However, it is possible that Petitioner could state

8 legal grounds and supporting facts that would entitle her to relief.
9 Accordingly, the petition will be dismissed as uncertain, but
10 Petitioner will be given leave to file an amended petition.
11

III.

Naming a Proper Respondent

12

Petitioner failed to name a respondent.

(Pet., doc. 1, 1.)

13 The official website of the California Department of Corrections and
14 Rehabilitation (CDCR) reflects that the warden of CIW, where
1
15 Petitioner is incarcerated, is Kimberly Hughes.

A petitioner who is seeking habeas corpus relief under 28

16

17 U.S.C. § 2254 must name the state officer having custody of him or
18 her as the respondent to the petition.

Habeas Rule 2(a); Ortiz-

19 Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v.
20 California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
21 Normally, the person having custody of an incarcerated petitioner is
22 the warden of the prison in which the petitioner is incarcerated
23 because the warden has “day-to-day control over” the petitioner and
24 thus can produce the petitioner.

Brittingham v. United States, 982

25
26
27
28

1

The Court may take judicial notice of facts that are capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be
questioned, including undisputed information posted on official websites. Fed. R.
Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993);
Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir. 2010).
The address of the official website for the CDCR is http://www.cdcr.ca.gov.

5

1 F.2d 378, 379 (9th Cir. 1992); see also, Stanley v. California
2 Supreme Court, 21 F.3d at 360.

However, the chief officer in charge

3 of state penal institutions, such as the Secretary of the CDCR, is
4 also appropriate.

Ortiz-Sandoval, 81 F.3d at 894; Stanley, 21 F.3d

5 at 360.
6

Petitioner’s failure to name a proper respondent may require

7 dismissal of her habeas petition for a failure to name a person who
8 can produce the petitioner in response to an order of the Court and
9 thereby to secure personal jurisdiction.
10 F.3d 350, 355 n.3 (9th Cir. 2004).

See, Smith v. Idaho, 392

This Court must ask sua sponte

11 whether the respondent who is named has the power to order the
12 petitioner’s release.

If not, the Court may not grant effective

13 relief, and thus it should not hear the case unless the petition is
14 amended to name a respondent who can grant the desired relief.

Id.

15 However, the Court will give Petitioner the opportunity to cure this
16 defect by amending the petition to name a proper respondent, such as
17 the warden of her institution of confinement.

See, In re Morris,

18 363 F.3d 891, 893-94 (9th Cir. 2004).
19

IV.

Exhaustion of State Court Remedies

20

A petitioner who is in state custody and wishes to challenge

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

28 U.S.C. ' 2254(b)(1).

The

23 exhaustion doctrine is based on comity to the state court and gives
24 the state court the initial opportunity to correct the state's
25 alleged constitutional deprivations.

Coleman v. Thompson, 501 U.S.

26 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v.
27 Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).
28

A petitioner can satisfy the exhaustion requirement by
6

1 providing the highest state court with the necessary jurisdiction a
2 full and fair opportunity to consider each claim before presenting
3 it to the federal court, and demonstrating that no state remedy
4 remains available.

Picard v. Connor, 404 U.S. 270, 275-76 (1971);

5 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996).

A federal court

6 will find that the highest state court was given a full and fair
7 opportunity to hear a claim if the petitioner has presented the
8 highest state court with the claim's factual and legal basis.
9 Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v.
10 Tamayo-Reyes, 504 U.S. 1, 9-10 (1992), superceded by statute as
11 stated in Williams v. Taylor, 529 U.S. 362 (2000) (factual basis).
12

Additionally, the petitioner must have specifically told the

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

In Duncan, the United States Supreme

18 Court reiterated the rule as follows:
19
20
21
22
23
24
25
26
27
28

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.
7

1 Duncan, 513 U.S. at 365-366.

The Ninth Circuit examined the rule

2 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000),
3 as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir.
4 2001), stating:
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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
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.
Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended
by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001).
Where none of a petitioner=s claims has been presented to the highest
state court as required by the exhaustion doctrine, the Court must
dismiss the petition.

Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th

Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001).

The

authority of a court to hold a mixed petition in abeyance pending
exhaustion of the unexhausted claims has not been extended to
petitions that contain no exhausted claims.
8

Rasberry, 448 F.3d at

1 1154.
2

Here, Petitioner has failed to allege exhaustion of state court

3 remedies.

However, Petitioner will have the opportunity to inform

4 the Court of her efforts to exhaust state court remedies in an
5 amended petition.
6
7

V.

Amendment of the Petition

The instant petition must be dismissed for the reasons stated

8 above.

Petitioner will be given leave to file a first amended

9 petition to cure the deficiencies.

Petitioner is advised that

10 failure to file a petition in compliance with this order (i.e., a
11 completed petition form with cognizable federal claims clearly
12 stated) within the allotted time will result in dismissal of the
13 petition and termination of the action.

Petitioner is advised that

14 the amended petition should be entitled, “First Amended Petition,”
15 and it must refer to the case number in this action.

Further,

16 Petitioner is informed that Local Rule 220 provides that unless
17 prior approval to the contrary is obtained from the Court, every
18 pleading as to which an amendment or supplement is permitted shall
19 be retyped or rewritten and filed so that it is complete in itself
20 without reference to the prior or superseded pleading.
21

The Clerk will be directed to send to Petitioner a blank form

22 petition for a proceeding pursuant to § 2254.
23

VI.

Disposition

24

Accordingly, it is ORDERED that:

25

1) The petition for writ of habeas corpus is DISMISSED with

26 leave to amend; and
27

2) Petitioner is GRANTED thirty (30) days from the date of

28 service of this order to file an amended petition in compliance with
9

1 this order; and
2

3) The Clerk of the Court is DIRECTED to send Petitioner a form

3 petition pursuant to 28 U.S.C. § 2254.
4
5 IT IS SO ORDERED.
6
7

Dated:

/s/ Barbara

May 15, 2014

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10