Quiroga v. State of California

Filing 13

FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus (Doc. 1 ) be DISMISSED WITHOUT PREJUDICE for Failure to Exhaust State Remedies signed by Magistrate Judge Jennifer L. Thurston on 9/12/2016. Referred to Judge Ishii. Objections to F&R due within twenty-one (21) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MONICO J. QUIROGA, III,

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Petitioner,

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v.

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STATE OF CALIFORNIA,

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Respondent.

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Case No.: 1:16-cv-01246-AWI-JLT (HC)
FINDINGS AND RECOMMENDATIONS TO
DISMISS PETITION FOR FAILURE TO
EXHAUST STATE REMEDIES (Doc. 1)
[TWENTY-ONE DAY DEADLINE]

Petitioner is serving an 11-year term on a conviction imposed in the Kern County Superior

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Court for intimidation and stalking. In this action, Petitioner raises numerous claims concerning his

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2016 conviction; however, he concedes that his claims are currently pending in the California Court of

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Appeal. Therefore, the Court will recommend that the petition be dismissed for failure to exhaust state

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remedies.

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I.

DISCUSSION

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A.

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

Preliminary Review of Petition

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if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is

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not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The

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Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas

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corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after
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an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001).

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B.

Exhaustion

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A petitioner who is in state custody and wishes to collaterally challenge his conviction by a

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petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The

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exhaustion doctrine is based on comity to the state court and gives the state court the initial

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opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S.

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722, 731 (1991).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with a

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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). 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 factual and legal basis. Id. (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1 (1992) (factual

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basis).

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Additionally, the petitioner must have specifically told the state court that he was raising a

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federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme

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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.
Id. The Ninth Circuit examined the rule further, stating:
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. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v.
Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . .

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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, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons v.

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Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001). Where none of a petitioner’s claims have been

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presented to the highest state court as required by the exhaustion doctrine, the Court must dismiss the

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petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). The authority of a court to hold a

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mixed petition in abeyance pending exhaustion of the unexhausted claims has not been extended to

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petitions that contain no exhausted claims. Id.
Here, Petitioner states his claims are currently pending before the California Court of Appeal,

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Fifth Appellate District. Because Petitioner has not presented his claims for federal relief to the

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California Supreme Court, the Court must dismiss the petition. See Calderon v. United States Dist.

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Court, 107 F.3d 756, 760 (9th Cir. 1997) (en banc). The Court cannot consider a petition that is

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entirely unexhausted. Rose v. Lundy, 455 U.S. 509, 521-22 (1982).

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II.

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RECOMMENDATION
Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be

DISMISSED WITHOUT PREJUDICE for failure to exhaust state remedies.
This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within

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twenty-one days after being served with a copy, Petitioner may file written objections with the Court.

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Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.

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§ 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

September 12, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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