Gutierrez, Jr. v. Groves

Filing 6

ORDER to SHOW CAUSE Why the Petition should not be Dismissed for Lack of Exhaustion; Order Directing that Response be Filed within Thirty Days signed by Magistrate Judge Jennifer L. Thurston on 11/25/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAY GUTIERREZ, JR.,
Petitioner,

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v.
R. GROVES, CDW Chairperson,
Respondent.

Case No.: 1:14-cv-01753-JLT
ORDER TO SHOW CAUSE WHY THE PETITION
SHOULD NOT BE DISMISSED FOR LACK OF
EXHAUSTION
ORDER DIRECTING THAT RESPONSE BE
FILED WITHIN THIRTY DAYS

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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.
PROCEDURAL HISTORY
The instant petition was filed on November 10, 2014. A preliminary review of the petition,

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however, reveals that the petition contains claims that have not been exhausted in state court which, if

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true, would require the Court to dismiss the petition.
DISCUSSION

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A. Preliminary Review of Petition.

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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if

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it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not

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entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The

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Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas
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corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after

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an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001).

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B. Exhaustion.

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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 opportunity

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to correct the alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991);

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

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

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factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1,

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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
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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, 668-69 (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.
Here, Petitioner indicated in his petition that none of his claims have been presented to the

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California Supreme Court. The Court cannot consider a petition that is entirely unexhausted and the

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Court must dismiss it. Rose v. Lundy, 455 U.S. 509, 521-22 (1982); Calderon v. United States Dist.

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Court, 107 F.3d 756, 760 (9th Cir. 1997); Greenawalt v. Stewart, 105 F.3d 1268, 1273 (9th Cir. 1997).
Accordingly, Petitioner will be permitted thirty days within which to respond to this Order To

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Show Cause by filing a response containing evidence that the claims herein are indeed exhausted.1
ORDER

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For the foregoing reasons, the Court HEREBY ORDERS as follows:

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To the extent that Petitioner requests a “stay and abeyance” in order to exhaust state court remedies, Petitioner is advised
that federal law permits the district court to stay proceedings on a “mixed petition,” i.e., petitions that contain both
exhausted and unexhausted claims. However, no federal law permits the district court to retain jurisdiction over an entirely
unexhausted state petition. As mentioned above, 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. Raspberry, 448
F.3d at 1154. Should the instant petition prove to be entirely unexhausted, the Court must dismiss it and no stay can be
authorized. At that juncture, Petitioner’s only alternative would be to file a petition containing at least one fully exhausted
claim in order to confer habeas jurisdiction upon the district court. At that point, a stay could, under the appropriate
circumstances, be issued to permit Petitioner to exhaust additional claims in state court. Petitioner is advised, however, the
federal habeas law requires that any petition and its included claims be filed within the one-year limitation period. Claims
filed after that period of time will be deemed untimely unless an appropriate exception exists to permit the untimely claim
to go forward.

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1. Petitioner is ORDERED TO SHOW CAUSE within 30 days of the date of service of

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this Order why the Petition should not be dismissed for failure to exhaust remedies in state

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court.

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Petitioner is forewarned that failure to comply with this order may result in a Recommendation
that the Petition be dismissed pursuant to Local Rule 110.

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IT IS SO ORDERED.
Dated:

November 25, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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