Dynes v. Fresno Superior Court

Filing 6

ORDER to SHOW CAUSE Why the Petition Should not be Dismissed for Petitioner's Failure to Exhaust State Remedies signed by Magistrate Judge Michael J. Seng on 11/21/2014. Show Cause Response due by 12/29/2014.(Flores, E)

1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10
11

Case No. 1:14-cv-01796 MJS (HC)
JOHN RAY DYNES,

12
v.

13

ORDER TO SHOW CAUSE WHY THE
Petitioner, PETITION SHOULD NOT BE DISMISSED
FOR PETITIONER’S FAILURE TO
EXHAUST STATE REMEDIES

14
15

FRESNO SUPERIOR COURT,
Respondent.

16
17

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

18

corpus pursuant to 28 U.S.C. § 2254. On November 17, 2014, Petitioner filed the instant

19

petition challenging an April 3, 2014 conviction for two counts of second degree robbery,

20

and carrying a concealed weapon. (Pet., ECF No. 1.) In the petition, Petitioner explains

21

that he did not seek direct appeal of his conviction and that he has only filed one state

22

habeas petition with the Fresno County Superior Court. (Id.)

23

I.

DISCUSSION

24

Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a

25

preliminary review of each petition for writ of habeas corpus. The Court must dismiss a

26

petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to

27

relief." Rule 4 of the Rules Governing § 2254 Cases; Hendricks v. Vasquez, 908 F.2d

28

490 (9th Cir.1990). Otherwise, the Court will order Respondent to respond to the petition.
1

1

Rule 5 of the Rules Governing § 2254 Cases.

2

A petitioner who is in state custody and wishes to collaterally challenge his

3

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

4

28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court

5

and gives the state court the initial opportunity to correct the state's alleged constitutional

6

deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S.

7

509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988).

8

A petitioner can satisfy the exhaustion requirement by providing the highest state

9

court with a full and fair opportunity to consider each claim before presenting it to the

10

federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S.

11

270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will

12

find that the highest state court was given a full and fair opportunity to hear a claim if the

13

petitioner has presented the highest state court with the claim's factual and legal basis.

14

Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9 (1992)

15

(factual basis).

16

Additionally, the petitioner must have specifically told the state court that he was

17

raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford,

18

232 F.3d 666, 669 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195

19

F.3d 1098, 1106 (9th Cir.1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In

20

Duncan, the United States Supreme Court reiterated the rule as follows:

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 present"
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
2

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); . . . .

1
2
3
4
5
6
7

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.

8
9

Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000).
10
Upon review of the instant petition for writ of habeas corpus, it appears that
11
Petitioner has not presented his claims to the highest state court, the California Supreme
12
Court. If, in fact, Petitioner presented his claims to the California Supreme Court, he
13
must inform this Court of his effort to exhaust his state remedies and if possible, provide
14
the Court with a copy any petitions and resulting rulings from the California Supreme
15
Court. Unless Petitioner has exhausted his state remedies, the Court is unable to
16
proceed to the merits of the petition. 28 U.S.C. § 2254(b)(1).
17
II.

ORDER

18
Accordingly, Petitioner is ORDERED TO SHOW CAUSE why the petition should
19

not be dismissed for Petitioner’s failure to exhaust state remedies. Petitioner is

20
ORDERED to inform the Court what claims have been presented to the California
21
Supreme Court within thirty (30) days of the date of service of this order.
22
Petitioner is forewarned that failure to follow this order will result in dismissal of
23
the petition pursuant to Local Rule 110.
24
25

IT IS SO ORDERED.

26
27
28

Dated:

November 21, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4