Abshire v. Price

Filing 11

ORDER VACATING 10 Order Regarding Consent; ORDER DISMISSING the 1 Petition for Writ of Habeas Corpus without Prejudice for Failure to Exhaust State Court Remedies; ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY and DIRECTING the Clerk to CLOSE the CASE signed by Magistrate Judge Sheila K. Oberto on 2/17/2015. 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 DYLAN G. ABSHIRE,

Case No. 1:15-cv-00239-SKO-HC

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ORDER VACATING ORDER REGARDING
CONSENT (DOC. 10)

Petitioner,

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ORDER DISMISSING THE PETITION FOR
WRIT OF HABEAS CORPUS WITHOUT
PREJUDICE FOR FAILURE TO EXHAUST
STATE COURT REMEDIES (DOC. 1)

v.

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J PRICE,

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

Respondent.

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Petitioner is a state prisoner proceeding pro se and in forma

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pauperis with a petition for writ of habeas corpus pursuant to 28

21 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
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of final judgment, by manifesting his written consent filed on
December 15, 2014.

(Doc. 5.)

Pending before the Court is the

petition, which was filed on December 3, 2014, and transferred to
this Court on February 13, 2015.

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I.

Vacating the Court’s Order regarding Consent

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Before this case was transferred to this Court, Petitioner

3 filed his consent to the jurisdiction of the Magistrate Judge to
4 conduct all further proceedings and enter final judgment in this
5 case.

(Doc. 5, filed December 15, 2014.)

When the case was

6 received in this Court on February 13, 2014, this Court issued new
7 case documents, including an order to Petitioner regarding consent
8 to Magistrate Judge jurisdiction.

(Doc. 10).

Because the order

9 regarding consent was redundant and unnecessary, it will be 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

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

Habeas Rule 4;

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

Habeas Rule

19 2(c) requires that a petition 1) specify all grounds of relief
20 available to the Petitioner; 2) state the facts supporting each
21 ground; and 3) state the relief requested.

Notice pleading is not

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

Rule 4, Advisory

24 Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 F.2d at 420
25 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)).
26 Allegations in a petition that are vague, conclusory, or palpably
27 incredible are subject to summary dismissal.
28 908 F.2d at 491.
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Hendricks v. Vasquez,

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The Court may dismiss a petition for writ of habeas corpus

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

Advisory Committee Notes to Habeas Rule 8, 1976

5 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir.
6 2001).

However, a petition for habeas corpus should not be

7 dismissed without leave to amend unless it appears that no tenable
8 claim for relief can be pleaded were such leave granted.

Jarvis v.

9 Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
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Petitioner alleges that he is an inmate of the Deuel Vocational

11 Institution serving a sentence of four years imposed in the Superior
12 Court of the State of California, County of Mariposa.

Petitioner

13 challenges his conviction and sentence, arguing that his plea was
14 invalid and that he lacked adequate representation by counsel.
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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

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

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

The

19 exhaustion doctrine is based on comity to the state court and gives
20 the state court the initial opportunity to correct the state's
21 alleged constitutional deprivations.

Coleman v. Thompson, 501 U.S.

22 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v.
23 Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).
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A petitioner can satisfy the exhaustion requirement by

25 providing the highest state court with the necessary jurisdiction a
26 full and fair opportunity to consider each claim before presenting
27 it to the federal court, and demonstrating that no state remedy
28 remains available.

Picard v. Connor, 404 U.S. 270, 275-76 (1971);
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1 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996).

A federal court

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

9 state court that he was raising a federal constitutional claim.
10 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669
11 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v.
12 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d
13 1240, 1241 (9th Cir. 1998).

In Duncan, the United States Supreme

14 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
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.

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

The Ninth Circuit examined the rule

26 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000),
27 as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir.
28 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
Cir. 2001).

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.
Here, Petitioner states that he did not appeal his conviction,
and he did not seek review in the California Supreme Court.
1, 6.)

(Doc.

Thus, Petitioner admits he has not exhausted state court
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1 remedies as to any of the claims in the petition.
Although non-exhaustion of state court remedies has been viewed

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3 as an affirmative defense, it is petitioner’s burden to prove that
4 state judicial remedies were properly exhausted.
5 2254(b)(1)(A);

28 U.S.C. §

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

6 overruled in part on other grounds in Fay v. Noia, 372 U.S. 391
7 (1963); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).

If

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

Rose v. Lundy,

10 455 U.S. at 515-16.
Here, Petitioner’s petition is premature because Petitioner

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12 admits he has not submitted his claims to the California Supreme
13 Court for a ruling.

A search of the official website of the

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

In summary, Petitioner has failed to meet his burden to

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18 establish that before coming to this Court with these challenges to
19 the judgment and sentence pursuant to which he is confined, he
20 exhausted his state court remedies.
21 be dismissed without prejudice

Accordingly, the petition will

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The Court takes judicial notice of the docket as posted on the official website
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.

24 pursuant to Fed. R. Evid. 201(b).
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A dismissal for failure to exhaust is not a dismissal on the merits, and

28 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

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1 for failure to exhaust state court remedies.
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IV.

Certificate of Appealability

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Unless a circuit justice or judge issues a certificate of

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

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7 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
8 (2003).

A district court must issue or deny a certificate of

9 appealability when it enters a final order adverse to the applicant.
10 Habeas Rule 11(a).
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A certificate of appealability may issue only if the applicant

12 makes a substantial showing of the denial of a constitutional right.
13 ' 2253(c)(2).

Under this standard, a petitioner must show that

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

Miller-

17 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
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19 Petitioner exhausts available state remedies.
(9th Cir. 1996).

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See, In re Turner, 101 F.3d 1323
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
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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1 473, 484 (2000)).

A certificate should issue if the Petitioner

2 shows that jurists of reason would find it debatable whether: (1)
3 the petition states a valid claim of the denial of a constitutional
4 right, and (2) the district court was correct in any procedural
5 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

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

Id.

An applicant must show more than an absence

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

Miller-El v.

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

14 whether the petition should have been resolved in a different
15 manner.

Petitioner has not made a substantial showing of the denial

16 of a constitutional right.

Accordingly, the Court will decline to

17 issue a certificate of 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 Court’s order regarding consent that was filed and

21 served on Petitioner on February 13, 2015, is VACATED;
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2)

The petition is DISMISSED without prejudice for

23 Petitioner’s failure to exhaust state court remedies;
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3)

The Court DECLINES to issue a certificate of appealability;

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4)

The Clerk is DIRECTED to close the case because dismissal

2 will terminate the proceeding in its entirety.
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5 IT IS SO ORDERED.
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Dated:

February 17, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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