Simpson v. Ahlin

Filing 7

ORDER DISMISSING PETITION for Failure to Exhaust State Remedies and ORDER DECLINING to Issue a Certificate of Appealability signed by Magistrate Judge Gary S. Austin on 7/30/2015. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EARL SIMPSON,
Petitioner,

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Case No. 1:15-cv-00562-GSA -HC
ORDER DISMISSING PETITION FOR
FAILURE TO EXHAUST STATE
REMEDIES

v.
PAM AHLIN,
Respondent.

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Petitioner is a former state prisoner who has been civilly committed to Coalinga State

18 Hospital. Petitioner has consented to the jurisdiction of the Magistrate Judge pursuant to 28
19 U.S.C. § 636(c). (ECF No. 5). On April 9, 2015, Petitioner filed the instant action by filing a
20 document entitled “Petition for Writ of Mandamus and Prohibition.” On June 5, 2015, the Court
21 issued an order construing the petition for writ of mandamus as a petition for writ of habeas
22 corpus. (ECF No. 6). The Court also ordered Petitioner to show cause within thirty days of the
23 date of service of the order why the petition should not be dismissed for failure to exhaust state
24 remedies. (ECF No. 6). Petitioner did not file a response to the Court’s order to show cause.
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I.

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DISCUSSION

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

28 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it

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1 plainly appears from the petition . . . that the petitioner is not entitled to relief." See Rule 4 of the
2 Rules Governing § 2254 Cases; Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).
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A petitioner who is in state custody and wishes to collaterally challenge his civil

4 commitment by a petition for writ of habeas corpus must exhaust state judicial remedies. 28
5 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the
6 state court the initial opportunity to correct the state's alleged constitutional deprivations.
7 Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982);
8 Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988).
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A petitioner can satisfy the exhaustion requirement by providing the highest state court

10 with a full and fair opportunity to consider each claim before presenting it to the federal court.
11 Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971);
12 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest
13 state court was given a full and fair opportunity to hear a claim if the petitioner has presented the
14 highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis);
15 Kenney v. Tamayo-Reyes, 504 U.S. 1, 8-10 (1992) (factual basis).
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Additionally, the petitioner must have specifically told the state court that he was raising

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

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

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Here, Petitioner did not respond to the Court’s order to show cause. Upon a review of the

2 petition, it appears that Petitioner has not sought review in the California Supreme Court, there is
3 not an absence of available State corrective process, and circumstances do not exist that render
4 such process ineffective to protect the rights of the applicant. Therefore, the Court cannot
5 proceed to the merits of Petitioner’s claims, and the petition must be dismissed without
6 prejudice. See 28 U.S.C. § 2254(b)(1).
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II.

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CERTIFICATE OF APPEALABILITY

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A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

11 district court’s denial of his petition, and an appeal is only allowed in certain circumstances.
12 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining
13 whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:
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(a) In a habeas corpus proceeding or a proceeding under section
2255 before a district judge, the final order shall be subject to
review, on appeal, by the court of appeals for the circuit in which
the proceeding is held.
(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to another
district or place for commitment or trial a person charged with a
criminal offense against the United States, or to test the validity of
such person’s detention pending removal proceedings.
(c) (1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of
appeals from–
(A) the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by
a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the
denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing
required by paragraph (2).

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If a court denies a petitioner’s petition, the court may only issue a certificate of

2 appealability “if jurists of reason could disagree with the district court’s resolution of his
3 constitutional claims or that jurists could conclude the issues presented are adequate to deserve
4 encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473,
5 484 (2000). While the petitioner is not required to prove the merits of his case, he must
6 demonstrate “something more than the absence of frivolity or the existence of mere good faith on
7 his . . . part.” Miller-El, 537 U.S. at 338.
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In the present case, the Court finds that reasonable jurists would not find the Court’s

9 determination that Petitioner’s federal habeas corpus petition should be dismissed debatable,
10 wrong, or deserving of encouragement to proceed further. Petitioner has not made the required
11 substantial showing of the denial of a constitutional right. Therefore, the Court declines to issue
12 a certificate of appealability.
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III.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s petition for writ of habeas corpus is DISMISSED WITHOUT
PREJUDICE for failure to exhaust state remedies;

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2. The Clerk of Court is DIRECTED to close the case; and

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3. The Court DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.
Dated:

July 30, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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