Sconiers v. Solano Superior Court et al
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 12/11/2014 recommending that 1 Petition for Writ of Habeas Corpus be dismissed. Referred to Judge Anthony W. Ishii; Objections to F&R due by 12/29/2014. (Lundstrom, T)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Case No. 1:14-cv-01915-AWI-GSA-HC
FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
SOLANO SUPERIOR COURT, et al.,
(ECF No. 1)
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
18 pursuant to the authority of 28 U.S.C. § 2254.
On December 3, 2014, Petitioner filed the instant petition for writ of habeas corpus in this
20 Court. (Pet., ECF No. 1). Petitioner argues that his prior felony convictions should be reduced
21 to misdemeanors because of the new Proposition 47 that was passed in November 2014. (Pet. at
22 3-4).1 Petitioner also argues that he should receive a reduction in his current prison term because
23 he now has no convictions that would qualify for the prison prior enhancements that he was
24 sentenced to as part of his current sentence. (Pet. at 4). Petitioner has pending Proposition 47
25 applications in several California Superior Courts and pending petitions for writs of habeas
26 corpus. (Pet. at 6).
Page numbers refer to the ECF page numbers.
A. Procedural Grounds for Summary Dismissal
Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary
5 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it
6 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the
7 Rules Governing Section 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th
8 Cir.1990). The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a
9 petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the
10 respondent’s motion to dismiss, or after an answer to the petition has been filed. A petition for
11 habeas corpus should not be dismissed without leave to amend unless it appears that no tenable
12 claim for relief can be pleaded were such leave granted. See Jarvis v. Nelson, 440 F.2d 13, 14
13 (9th Cir. 1971).
B. Failure to Exhaust State Judicial Remedies
A petitioner who is in state custody proceeding with a petition for writ of habeas corpus
16 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based
17 on comity to the state court and gives the state court the initial opportunity to correct the state's
18 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v.
19 Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988).
A petitioner can satisfy the exhaustion requirement by providing the highest state court
21 with a full and fair opportunity to consider each claim before presenting it to the federal court.
22 Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971);
23 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest
24 state court was given a full and fair opportunity to hear a claim if the petitioner has presented the
25 highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis);
26 Kenney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis).
Additionally, the petitioner must have specifically told the state court that he was raising
28 a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666,
1 669 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th
2 Cir.1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In Duncan, the United States
3 Supreme Court reiterated the rule as follows:
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.
11 Duncan, 513 U.S. at 365-66 (internal citations omitted).
A review of the instant petition for writ of habeas corpus reveals that Petitioner has not
13 sought review for his claims in the California Supreme Court. It appears that Petitioner has
14 pending Proposition 47 applications in several California Superior Courts, as well as pending
15 petitions for writs of habeas corpus. Since Petitioner has not presented all of his claims to the
16 highest state court, this Court cannot proceed to the merits of those claims. Therefore, the
17 petition should be dismissed without prejudice. See 28 U.S.C. § 2254(b)(1).
Accordingly, the Court HEREBY RECOMMENDS that the petition for writ of habeas
corpus be DISMISSED without prejudice.
This Findings and Recommendation is submitted to the assigned United States District
Court Judge pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local
Rules of Practice for the United States District Court, Eastern District of California. Within
thirty (30) days after being served with a copy, Petitioner may file written objections with the
Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and
Recommendation.” Replies to the objections shall be served and filed within fourteen (14) days
1 after service of the objections.
The Court will then review the Magistrate Judge’s ruling
2 pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections
3 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, __
4 F.3d __, __, No. 11-17911, 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v.
5 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
December 11, 2014
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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