Greene v. Durcart

Filing 12

ORDER Vacating Order re Consent; ORDER Dismissing the Petition for Writ of Habeas Corpus without Prejudice for Failure to Exhaust State Court Remedies, Declining to Issue a Certificate of Appealability, and Directing the Clerk to Close the Case, signed by Magistrate Judge Barbara A. McAuliffe on 1/28/15. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 MARCELLUS ALEXANDER GREENE,

Case No. 1:15-cv-00137-BAM-HC

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ORDER VACATING ORDER RE: CONSENT
(DOC. 10)

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Petitioner,
v.

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C E DURCART,
Respondent.

ORDER DISMISSING THE PETITION FOR
WRIT OF HABEAS CORPUS WITHOUT
PREJUDICE FOR FAILURE TO EXHAUST
STATE COURT REMEDIES (DOC. 4),
DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND DIRECTING THE
CLERK TO CLOSE THE CASE

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Petitioner is a state prisoner proceeding pro se and in forma

19 pauperis with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. Pending before the Court is the petition, which was
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21 filed in the United States District Court for the Central District
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of California on or about January 21, 2015, and transferred to this

23 Court on January 27, 2015.
I. Order Vacating Order to Petitioner to Inform the Court
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regarding Petitioner’s Consent to Magistrate Judge
Jurisdiction
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Pursuant to 28 U.S.C. 636(c)(1), Petitioner has previously

27 manifested his consent to the jurisdiction of the United States
28 Magistrate Judge to conduct all further proceedings in the case,
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1 including the entry of final judgment, by manifesting his voluntary
2 consent in a signed writing filed on January 21, 2015 (doc. 5), when
3 the case was pending in the Central District.

When the case was

4 transferred here, another order to Petitioner regarding consent to
5 Magistrate Judge jurisdiction issued and was mailed to Petitioner on
6 January 21, 2015.

(Doc. 10.)

However, the order regarding consent

7 that issued to Petitioner on that day was unnecessary and
8 duplicative because Petitioner had already opted to consent to
9 Magistrate Judge jurisdiction.
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Accordingly, the portion of the Court’s order of January 21,

11 2015, which directed Petitioner to indicate his choice regarding
12 Magistrate Judge jurisdiction, is VACATED.
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II.

Screening the Petition

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

15 District Courts (Habeas Rules) requires the Court to make a
16 preliminary review of each petition for writ of habeas corpus. The
17 Court must summarily dismiss a petition "[i]f it plainly appears
18 from the petition and any attached exhibits that the petitioner is
19 not entitled to relief in the district court....”

Habeas Rule 4;

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

Habeas Rule

22 2(c) requires that a petition 1) specify all grounds of relief
23 available to the Petitioner; 2) state the facts supporting each
24 ground; and 3) state the relief requested.

Notice pleading is not

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

Rule 4, Advisory

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

Hendricks v. Vasquez,

3 908 F.2d at 491.
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Further, the Court may dismiss a petition for writ of habeas

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

Advisory Committee Notes to Habeas Rule 8, 1976

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

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

Jarvis v. Nelson, 440 F.2d

13 13, 14 (9th Cir. 1971).
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Here, Petitioner alleges that he is an inmate of the Pelican

15 Bay State Prison serving a sentence imposed on August 30, 2012, in
16 the Superior Court of the State of California, County of Kings, for
17 a violation of Cal. Pen. Code § 314(1).

(Pet., doc. 4 at 1-2.)

18 Petitioner appears to challenge his conviction on the ground that
19 reports of law enforcement officers do not constitute sufficient
20 proof of his guilt of a crime because they are hearsay.

(Id. at

21 18.)
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III.

Failure to Exhaust State Court Remedies

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A petitioner who is in state custody and wishes to challenge

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

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

The

26 exhaustion doctrine is based on comity to the state court and gives
27 the state court the initial opportunity to correct the state's
28 alleged constitutional deprivations.
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Coleman v. Thompson, 501 U.S.

1 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v.
2 Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).
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A petitioner can satisfy the exhaustion requirement by

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

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

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

A federal court

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

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

In Duncan, the United States Supreme

21 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
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
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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.

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

The Ninth Circuit examined the rule

5 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000),
6 as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir.
7 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.

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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.

Raspberry v. Garcia, 448 F.3d

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

The authority of a court to hold a mixed petition in

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

Raspberry,

4 448 F.3d at 1154.
Here, Petitioner indicates that he filed a petition for writ of

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6 habeas corpus before the Kings County Superior Court, which was
7 denied without prejudice in December 2014 as unintelligible.
8 doc. 4 at pp. 3-8, 13-14.)

(Pet.,

However, Petitioner admits that he did

9 not appeal and did not file any petitions in the California Supreme
10 Court.

(Id. at 1-6.)

Thus, Petitioner admits that he has not

11 exhausted state court remedies as to any of the claims stated in the
12 petition before the Court.
A search of the official website of the California Supreme

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14 Court reflects no information that would tend to show that
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15 Petitioner has presented his claims to the California Supreme Court.

Although non-exhaustion of state court remedies has been viewed

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17 as an affirmative defense, it is established that it is the
18 petitioner’s burden to prove that state judicial remedies were
19 properly exhausted.

28 U.S.C. § 2254(b)(1)(A);

Darr v. Burford,

20 339 U.S. 200, 218-19 (1950), overruled in part on other grounds in
21 Fay v. Noia, 372 U.S. 391 (1963); Cartwright v. Cupp, 650 F.2d 1103,
22 1104 (9th Cir. 1981).

If available state court remedies have not

23 been exhausted as to all claims, a district court must dismiss a
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The Court takes judicial notice of the absence of any pending proceeding posted
on the official website pursuant to 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 dockets 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.

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1 petition.

Rose v. Lundy, 455 U.S. 509, 515-16 (1982).

Here, Petitioner’s petition is premature because Petitioner

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3 admits that he has not submitted his claim or claims to the
4 California Supreme Court for a ruling.
Therefore, it is concluded that Petitioner failed to meet his

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6 burden to establish exhaustion of state court remedies.
Accordingly, the petition will be dismissed without prejudice

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8 because Petitioner has failed to exhaust his state court remedies as
9 to any of the claims in the petition.
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IV.

Certificate of Appealability

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Unless a circuit justice or judge issues a certificate of

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

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15 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
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A dismissal for failure to exhaust is not a dismissal on the merits, and

18 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
See, In re Turner, 101 F.3d 1323
(9th Cir. 1996). However, the Supreme Court has held as follows:

19 Petitioner exhausts available state remedies.
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[I]n the habeas corpus context is would be appropriate for
an order dismissing a mixed petition to instruct an applicant
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 (2003).

A district court must issue or deny a certificate of

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

5 makes a substantial showing of the denial of a constitutional right.
6 ' 2253(c)(2).

Under this standard, a petitioner must show that

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

Miller-

10 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
11 473, 484 (2000)).

A certificate should issue if the Petitioner

12 shows that jurists of reason would find it debatable whether: (1)
13 the petition states a valid claim of the denial of a constitutional
14 right, and (2) the district court was correct in any procedural
15 ruling.
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Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

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

17 claims in the habeas petition, generally assesses their merits, and
18 determines whether the resolution was debatable among jurists of
19 reason or wrong.

Id.

An applicant must show more than an absence

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

Miller-El v.

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

24 whether the petition should have been resolved in a different
25 manner.

Petitioner has not made a substantial showing of the denial

26 of a constitutional right.
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Accordingly, the Court will decline to issue a certificate of

28 appealability.
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V.

Disposition

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

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1)

The petition is DISMISSED without prejudice for

4 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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8 will terminate the proceeding in its entirety.
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10 IT IS SO ORDERED.
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Dated:

/s/ Barbara

January 28, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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