Kenneth R. Byrd v. Davies

Filing 11

ORDER DISMISSING 1 Petition for Writ of Habeas Corpus without Leave to Amend; ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY and DIRECTING the Clerk to CLOSE the CASE signed by Magistrate Judge Barbara A. McAuliffe on 1/20/2015. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 KENNETH R. BYRD,

Case No. 1:14-cv-02022-BAM-HC

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ORDER DISMISSING THE PETITION FOR
WRIT OF HABEAS CORPUS WITHOUT LEAVE
TO AMEND (DOC. 1)

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Petitioner,
v.

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DAVE DAVIES,
Respondent.

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ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY AND
DIRECTING THE CLERK TO CLOSE THE
CASE

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.

Pursuant to 28 U.S.C. 636(c)(1), Petitioner has

consented to the jurisdiction of the United States Magistrate Judge
to conduct all further proceedings in the case, including the entry
of final judgment, by manifesting his consent in a writing signed by
Petitioner and filed on January 16, 2014.

Pending before the Court

is the petition, which was filed on November 13, 2014, and
transferred to this Court on December 17, 2014.
I.

Screening the Petition

Rule 4 of the Rules Governing § 2254 Cases in the United States
District Courts (Habeas Rules) requires the Court to make a
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1 preliminary review of each petition for writ of habeas corpus.

The

2 Court must summarily dismiss a petition "[i]f it plainly appears
3 from the petition and any attached exhibits that the petitioner is
4 not entitled to relief in the district court....”

Habeas Rule 4;

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

Habeas Rule

7 2(c) requires that a petition 1) specify all grounds of relief
8 available to the Petitioner; 2) state the facts supporting each
9 ground; and 3) state the relief requested.

Notice pleading is not

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

Rule 4, Advisory

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

Hendricks v. Vasquez,

16 908 F.2d at 491.
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Further, the Court may dismiss a petition for writ of habeas

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

Advisory Committee Notes to Habeas Rule 8, 1976

21 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir.
22 2001).
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A petition for habeas corpus should not be dismissed without

24 leave to amend unless it appears that no tenable claim for relief
25 can be pleaded were such leave granted.

Jarvis v. Nelson, 440 F.2d

26 13, 14 (9th Cir. 1971).
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Here, Petitioner alleges that he is serving a sentence of

28 thirteen years imposed in the Alameda County Superior Court in 2005
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1 for corporal injury and battery with serious bodily injury.
2 doc. 1 at 2.)

(Pet.,

Petitioner challenges the failure of the California

3 Department of Corrections and Rehabilitation (CDCR) to award
4 Petitioner post-sentence time credit at a rate of thirty-four (34)
5 percent instead of fifteen (15) percent.

Petitioner alleges that

6 this award of credit was ordered by the court in Coleman v. Brown,
7 case number 2:90-cv-00520-LKK-DAD-PC, on June 20, 2013.

Petitioner

8 requests that this Court direct the CDCR to award him credit at the
9 higher rate.

(Id. at 15.)

Petitioner does not allege facts

10 regarding his exhaustion of state court remedies except to attach a
11 copy of an order of the Kings County Superior Court from August 2014
12 denying a petition for writ of habeas corpus.

(Id. at 19-21.)

13 However, reference to the official website of the California courts
14 reflects that Petitioner has not filed in the California Supreme
15 Court a petition for writ of habeas corpus or other request of
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16 relief regarding the Court’s order in Coleman v. Brown.

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II.

Failure to Exhaust State Court Remedies

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A petitioner who is in state custody and wishes to challenge

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

28 U.S.C. ' 224(b)(1).

The

21 exhaustion doctrine is based on comity to the state court and gives
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The Court may take judicial notice of facts that are capable of accurate and

24 ready determination by resort to sources where the accuracy of the source cannot
reasonably be questioned, including undisputed information posted on official
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). It is appropriate to take judicial notice of the docket sheet of
a California court. White v Martel, 601 F.3d 882, 885 (9th Cir. 2010), cert.
denied 131 S.Ct. 332 (2010). The address of the official website of the
California state courts is www.courts.ca.gov. The official website reflects no
filing by Petitioner either on or after June 2013, the date alleged to be the date
of the order issued in Coleman v. Brown.

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1 the state court the initial opportunity to correct the state's
2 alleged constitutional deprivations.

Coleman v. Thompson, 501 U.S.

3 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v.
4 Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).
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A petitioner can satisfy the exhaustion requirement by

6 providing the highest state court with the necessary jurisdiction a
7 full and fair opportunity to consider each claim before presenting
8 it to the federal court, and demonstrating that no state remedy
9 remains available.

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

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

A federal court

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

18 state court that he was raising a federal constitutional claim.
19 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669
20 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v.
21 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d
22 1240, 1241 (9th Cir. 1998).

In Duncan, the United States Supreme

23 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
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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.

6 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule
7 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000),
8 as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir.
9 2001), 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 "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.

25 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended
26 by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001).
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Where none of a petitioner=s claims has been presented to the

28 highest state court as required by the exhaustion doctrine, the
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1 Court must dismiss the petition.

Raspberry v. Garcia, 448 F.3d

2 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th
3 Cir. 2001).

The authority of a court to hold a mixed petition in

4 abeyance pending exhaustion of the unexhausted claims has not been
5 extended to petitions that contain no exhausted claims.

Raspberry,

6 448 F.3d at 1154.
Here, Petitioner has not exhausted state court remedies as to

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8 the only claim raised in the petition, which concerns enforcement of
9 the order that issued in Colewman v. Brown.
Although non-exhaustion of state court remedies has been viewed

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11 as an affirmative defense, it is petitioner’s burden to prove that
12 state judicial remedies were properly exhausted.
13 2254(b)(1)(A);

28 U.S.C. §

Darr v. Burford, 339 U.S. 200, 218-19 (1950),

14 overruled in part on other grounds in Fay v. Noia, 372 U.S. 391
15 (1963); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).

If

16 available state court remedies have not been exhausted as to all
17 claims, a district court must dismiss a petition.

Rose v. Lundy,

18 455 U.S. 509, 515-16 (1982).
Here, Petitioner’s petition is premature because Petitioner has

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20 not obtained a decision from the California Supreme Court on his
21 claim.

Therefore, Petitioner failed to meet his burden to establish

22 exhaustion of state court remedies.
23 be dismissed without prejudice

Accordingly, the petition will

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A dismissal for failure to exhaust is not a dismissal on the merits, and
Petitioner will not be barred by the prohibition against filing second habeas
petitions set forth in 28 U.S.C. § 2244(b) from returning to federal court after
Petitioner exhausts available state remedies. See, In re Turner, 101 F.3d 1323
(9th Cir. 1996). However, the Supreme Court has held as follows:
[I]n the habeas corpus context is would be appropriate for
an order dismissing a mixed petition to instruct an applicant

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1 for failure to exhaust state court remedies.
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III.

Dismissal without Leave to Amend

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It is appropriate to dismiss the petition without granting

4 leave to Petitioner to amend the petition to attempt to allege
5 further exhaustion of state court remedies.

Petitioner seeks habeas

6 relief that in effect would constitute enforcement of an order in a
7 pending action.

Reference to the docket of Coleman v. Brown shows

8 that as recently as December 19, 2014, the Court issued orders
9 concerning enforcement of terms concerning credit allowances for
10 various categories of offenders whose claims are pending in that
11 action.
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(Doc. 5254.)

Petitioner here appears to allege that his claim comes within

13 the Coleman v. Brown litigation and that he is a member of the
14 class.

Under such circumstances, it would be inappropriate for

15 Petitioner to bring an individual suit based on the same subject
16 matter.

See Crawford v. Bell, 599 F.2d 890, 892–93 (9th Cir. 1979)

17 (noting the propriety of dismissing an identical claim pending in a
18 previously certified class action); McNeil v. Guthrie, 945 F.2d
19 1163, 1165 (10th Cir. 1991) (determining that individual suits for
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that upon his return to federal court he is to bring only
exhausted claims. See Fed. Rules Civ. Proc. 41(a) and (b).
Once the petitioner is made aware of the exhaustion
requirement, no reason exists for him not to exhaust all
potential claims before returning to federal court. The
failure to comply with an order of the court is grounds for
dismissal with prejudice. Fed. Rules Civ. Proc. 41(b).
Slack v. McDaniel, 529 U.S. 473, 489 (2000).
Therefore, Petitioner is forewarned that in the event he returns to federal

27 court and files a mixed petition of both exhausted and unexhausted claims, the
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petition may be dismissed with prejudice.

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1 injunctive and equitable relief from allegedly unconstitutional
2 prison conditions cannot be brought where there is an existing class
3 action); see also Reece v. Basi, case number 2:11–cv–2712 GEB AC,
4 2013 WL 1339048, at *4–*5 (E.D.Cal. Apr. 3, 2013) (recommending
5 dismissal of the plaintiff's request for system-wide injunctive
6 relief over matters within the scope of the Plata litigation because
7 the plaintiff was member of the Plata class, and thus maintaining
8 the separate action would risk inconsistent adjudications and
9 interference with the orderly process of the class action), adopted
10 May 28, 2013) (doc. 36).
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IV.

Certificate of Appealability

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Unless a circuit justice or judge issues a certificate of

13 appealability, an appeal may not be taken to the Court of Appeals
14 from the final order in a habeas proceeding in which the detention
15 complained of arises out of process issued by a state court.

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16 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
17 (2003).

A district court must issue or deny a certificate of

18 appealability when it enters a final order adverse to the applicant.
19 Rule 11(a) of the Rules Governing Section 2254 Cases.
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A certificate of appealability may issue only if the applicant

21 makes a substantial showing of the denial of a constitutional right.
22 ' 2253(c)(2).

Under this standard, a petitioner must show that

23 reasonable jurists could debate whether the petition should have
24 been resolved in a different manner or that the issues presented
25 were adequate to deserve encouragement to proceed further.

Miller-

26 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
27 473, 484 (2000)).

A certificate should issue if the Petitioner

28 shows that jurists of reason would find it debatable whether: (1)
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1 the petition states a valid claim of the denial of a constitutional
2 right, and (2) the district court was correct in any procedural
3 ruling.

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

In determining this issue, a court conducts an overview of the

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5 claims in the habeas petition, generally assesses their merits, and
6 determines whether the resolution was debatable among jurists of
7 reason or wrong.

Id.

An applicant must show more than an absence

8 of frivolity or the existence of mere good faith; however, the
9 applicant need not show that the appeal will succeed.

Miller-El v.

10 Cockrell, 537 U.S. at 338.
Here, it does not appear that reasonable jurists could debate

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12 whether the petition should have been resolved in a different
13 manner.

Petitioner has not made a substantial showing of the denial

14 of a constitutional right.
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Accordingly, no certificate of appealability will issue.

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V.

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In accordance with the foregoing analysis, it is ORDERED that:

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1)

Disposition

The petition is DISMISSED without prejudice for

19 Petitioner’s failure to exhaust state court remedies; and
2)

The Court DECLINES to issue a certificate of appealability;

3)

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The Clerk is DIRECTED to close the case because dismissal

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23 will terminate the proceeding in its entirety.
24 IT IS SO ORDERED.
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Dated:

/s/ Barbara

January 20, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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