Zagsaw v. Davey et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that the Court dismiss the Petition for Writ of Habeas Corpus in this Case re 1 Petition for Writ of Habeas ; referred to Judge O'Neill,signed by Magistrate Judge Barbara A. McAuliffe on 10/9/15. Objections to F&R due by 11/16/2015 (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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SALTAN ZAGSAW,
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Petitioner,
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v.
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Case No. 1:15-cv-00793-LJO-BAM HC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
THE PETITION FOR FAILURE TO
EXHAUST STATE REMEDIES
DAVE DAVEY, Warden of CSP-Corcoran,
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FOURTEEN DAY DEADLINE
Respondent.
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(Doc. 11)
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Petitioner, a state prisoner proceeding pro se with a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254, seeks to set aside his validation as a member of the Northern Structure
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prison gang, and to secure release from the Security Housing Unit (SHU) and restoration of early
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release credits lost as a result of the gang validation. Respondent moves to dismiss the petition for
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failure to exhaust state remedies.
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I.
Procedural and Factual Background
On November 15, 2010, prison officials confined Petitioner in an administrative housing unit
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(AHU) pending investigation of his association with the Northern Structure prison gang. Petitioner
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filed an administrative appeal challenging the placement. While the appeal was pending, prison
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officials validated Petitioner's association with the Northern Structure.1 CDCR denied Petitioner's
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administrative appeal at all levels.
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Validation is the "formal and objective process for identifying and documenting Security Threat Group (STG) [gang]
affiliates" among California state prison inmates. Cal. Code Regs. tit. 15, § 3378.2.
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On June 5, 2012, Petitioner filed a petition for writ of habeas corpus in Kings County
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Superior Court in which he requested an order expunging the validation documents from his prison
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file and restoring custody credits lost as a result of validation. On July 10, 2012, the Superior Court
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denied the petition without prejudice to a new petition explaining Petitioner's delay in seeking relief.
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Petitioner refiled the petition. On October 15, 2012, the Superior Court denied the petition, finding
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evidence supporting Petitioner's gang validation.
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On January 31, 2012, Petitioner filed a habeas petition in the California Court of Appeal.
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The Court of Appeal denied the petition without prejudice on March 21, 2013, finding that Petitioner
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demonstrated Director's level review only of his placement in the AHU, but not of his gang
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validation. On June 11, 2013, Petitioner filed a new petition challenging both his gang validation
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and placement in the SHU, arguing that the Court of Appeals should waive the requirement of
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administrative exhaustion because prison officials improperly dismissed his administrative appeal.
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The Court of Appeal refused to waive exhaustion and denied the petition.
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After reviewing Petitioner's case factors on April 1, 2014, the prison classification committee
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retained Petitioner in the SHU based on his gang validation. Petitioner filed an administrative appeal
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challenging the validity of a confidential memorandum that supported his STG validation. The
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appeal was denied on all levels of review.
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On January 28, 2015, Petitioner filed a habeas petition in Kings County Superior Court. The
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Superior Court refused to consider again the gang validation in general and found the confidential
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memorandum sufficient to link Petitioner directly to Northern Structure gang members. It denied
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the petition on April 6, 2015.
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On May 26, 2015, Petitioner filed a federal petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 in this Court.
On June 17, 2015, Petitioner filed a habeas petition in the California Court of Appeal. The
Court of Appeal denied the petition on August 8, 2015.
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Petitioner did not file a petition with the California Supreme Court.
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Respondent filed his motion to dismiss on September 3, 2015. Petitioner filed no response.
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II.
Exhaustion of State Remedies
A petitioner who is in state custody and wishes to challenge collaterally his conviction by a
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federal petition for writ of habeas corpus must first exhaust state judicial remedies. 28 U.S.C. §
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2254(b)(1). The exhaustion doctrine is based on comity with the state court and gives the state court
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the initial opportunity to correct the state's constitutional deprivations. Coleman v. Thompson, 501
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U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158,
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1163 (9th Cir. 1988).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with
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a full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v.
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Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88
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F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full
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and fair opportunity to hear a claim if the petitioner has presented the highest state court with the
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claim's legal and factual basis. Duncan, 513 U.S. at 365 (legal basis); Keeney v. Tamayo-Reyes, 504
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U.S. 1, 8-9 (1992) (factual basis).
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Here, Petitioner has never filed a petition for writ of habeas corpus in the California Supreme
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Court. The Petitioner has never sought review of the Court of Appeal decisions as was necessary for
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Petitioner to fully exhaust his state remedies.
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III.
Petitioner has failed to exhaust judicial remedies. Accordingly, the undersigned recommends
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Conclusion and Recommendation
that the Court dismiss the petition for writ of habeas corpus in this case.
These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty (30) days
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after being served with these Findings and Recommendations, either party may file written
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objections with the Court. The document should be captioned AObjections to Magistrate Judge=s
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Findings and Recommendations.@ Replies to the objections, if any, shall be served and filed within
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///
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fourteen (14) days after service of the objections. The parties are advised that failure to file
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objections within the specified time may constitute waiver of the right to appeal the District Court's
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order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d
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1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
/s/ Barbara
October 9, 2015
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UNITED STATES MAGISTRATE JUDGE
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A. McAuliffe
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