Townsel v. Madera County District Attorney's Office

Filing 7

ORDER Granting Petitioner Leave To File A Motion To Amend, ORDER To SHOW CAUSE, signed by Magistrate Judge Gary S. Austin on 8/4/2015. (Show Cause Response due by 9/8/2015), (Show Cause Response due by 9/8/2015) (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID TOWNSEL,
Petitioner,

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Case No. 1:15-cv-01128-GSA HC
ORDER GRANTING PETITIONER LEAVE
TO FILE A MOTION TO AMEND

v.
ORDER TO SHOW CAUSE

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MADERA COUNTY DISTRICT
ATTORNEY’S OFFICE,

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Respondent.
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Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28

19 U.S.C. § 2254. On July 21, 2015, Petitioner filed the instant petition for writ of habeas corpus in
20 this Court. (ECF No. 1). Petitioner has consented to the jurisdiction of a Magistrate Judge
21 pursuant to 28 U.S.C. § 636(c). (ECF No. 6).
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I.

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DISCUSSION

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A. Preliminary Review of Petition

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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

26 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not
27 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases.
28 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ

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1 of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to
2 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th
3 Cir. 2001).
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B. Leave to File a Motion to Amend Petition and Name a Proper Respondent

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Petitioner names “Madera County District Attorney’s Office” as the Respondent. A

6 petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer
7 having custody of him as the respondent to the petition. Rule 2 (a) of the Rules Governing §
8 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California
9 Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of an
10 incarcerated petitioner is the warden of the prison in which the petitioner is incarcerated because
11 the warden has “day-to-day control over” the petitioner. Brittingham v. United States, 982 F.2d
12 378, 379 (9th Cir. 1992); see also, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th
13 Cir. 1994). However, the chief officer in charge of state penal institutions is also appropriate.
14 Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360.
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Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition

16 for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326,
17 1326 (9th Cir. 1970). However, the Court will give Petitioner the opportunity to cure this defect
18 by amending the petition to name a proper respondent, such as the Secretary of the California
19 Department of Corrections and Rehabilitation (“CDCR”) or his probation officer. See West v.
20 Louisiana, 478 F.2d 1026, 1029 (5th Cir.1973), vacated in part on other grounds, 510 F.2d 363
21 (5th Cir.1975) (en banc) (allowing petitioner to amend petition to name proper respondent);
22 Ashley v. State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). In the interests of judicial
23 economy, Petitioner need not file an amended petition. Instead, Petitioner may file a motion
24 entitled “Motion to Amend the Petition to Name a Proper Respondent” wherein Petitioner may
25 name a proper respondent in this action. Failure to amend the petition and name a proper
26 respondent will result in the petition being dismissed for lack of jurisdiction.
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C. Exhaustion

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Also, it appears that Petitioner has failed to exhaust the claims that he raises in the instant

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1 petition. A petitioner who is in state custody proceeding with a petition for writ of habeas corpus
2 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based
3 on comity to the state court and gives the state court the initial opportunity to correct the state's
4 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v.
5 Lundy, 455 U.S. 509, 518 (1982); 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

7 with a full and fair opportunity to consider each claim before presenting it to the federal court.
8 Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971);
9 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest
10 state court was given a full and fair opportunity to hear a claim if the petitioner has presented the
11 highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis);
12 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

14 a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666,
15 669 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th
16 Cir.1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In Duncan, the United States
17 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.

25 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, 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
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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. Hiivala v.
Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon,
88 F.3d 828, 830-31 (9th Cir. 1996); . . . .
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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9 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000).
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A petition is a mixed petition if it contains exhausted and unexhausted claims. A mixed

11 petition must be dismissed. However, a petitioner who has filed a mixed petition may, at his
12 option, withdraw the unexhausted claims and go forward with the exhausted claims. Anthony v.
13 Cambra, 236 F.3d 568, 574 (9th Cir. 2000) (“[D]istrict courts must provide habeas litigants with
14 the opportunity to amend their mixed petitions by striking unexhausted claims as an alternative
15 to suffering dismissal.”).
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Here, it appears that Petitioner has not sought review in the California Supreme Court.

17 Petitioner did not fill out several sections of the petition asking whether he filed an appeal or
18 previously filed petitions, applications, or motions. (ECF No. 1 at 1-4). In one section of the
19 petition, Petitioner stated that his grounds for relief were “never presented on appeal” and that he
20 does not have any petitions or appeals pending in any court as to the judgment under attack.
21 (ECF No. 1 at 7). If Petitioner has not sought relief in the California Supreme Court, the Court
22 cannot proceed to the merits of his claims. 28 U.S.C. § 2254(b)(1).
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However, it is possible that Petitioner has presented his claims to the California Supreme

24 Court and failed to indicate this to the Court. Thus, Petitioner must inform the Court whether
25 each of his claims has been presented to the California Supreme Court, and if possible, provide
26 the Court with a copy of the petition filed in the California Supreme Court that includes the
27 claims now presented and a file stamp showing that the petition was indeed filed in the
28 California Supreme Court.

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II.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner is GRANTED thirty (30) days from the date of service of this order in

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which to file a motion to amend the instant petition and name a proper respondent;

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2. Petitioner is ORDERED to SHOW CAUSE within thirty (30) days of the date of

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service of this order why the petition should not be dismissed for failure to exhaust

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state remedies.

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Petitioner is forewarned that failure to follow this order will result in dismissal of the

10 petition pursuant to Fed. R. Civil Proc. § 41(b) (A petitioner’s failure to prosecute or to comply
11 with a court order may result in a dismissal of the action, and the dismissal operates as an
12 adjudication on the merits.).
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IT IS SO ORDERED.
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Dated:

August 4, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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