Lynell T. Lewis v. CDCR

Filing 9

ORDER DIRECTING Clerk of Court to Assign District Judge; FINDINGS and RECOMMENDATION to Dismiss Unexhausted Petition Without Prejudice 1 , signed by Magistrate Judge Jennifer L. Thurston on 3/19/17: 21-Day Objection Deadline. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LYNELL TRAVON LEWIS, 12 Petitioner, v. 13 No. 1:17-cv-00208-JLT (HC) ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE FINDINGS AND RECOMMENDATION TO DISMISS UNEXHAUSTED PETITION WITHOUT PREJUDICE 14 CDCR, 15 Respondent. 16 [TWENTY-ONE DAY OBJECTION DEADLINE] 17 18 Petitioner filed a habeas petition on February 13, 2017, challenging his 2012 conviction in 19 Kern County Superior Court of multiple gang-related crimes. The Court conducted a preliminary 20 review of the petition and determined the petition appeared to be unexhausted. Petitioner was 21 ordered to show cause why the petition should not be dismissed for failure to exhaust state 22 remedies. Petitioner responded to the order on March 15, 2017. Based on his representations, the 23 Court concludes the instant petition is unexhausted and will therefore recommend it be dismissed 24 without prejudice to refiling once state remedies have been exhausted. DISCUSSION 25 26 27 28 A. Screening of Petition Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 1 1 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 2 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 3 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 4 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th 5 Cir.2001). 6 B. Exhaustion 7 A petitioner who is in state custody and wishes to collaterally challenge his conviction by 8 a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). 9 The exhaustion doctrine is based on comity to the state court and gives the state court the initial 10 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 11 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 12 A petitioner can satisfy the exhaustion requirement by providing the highest state court 13 with a full and fair opportunity to consider each claim before presenting it to the federal court. 14 Duncan v. Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court 15 was given a full and fair opportunity to hear a claim if the petitioner has presented the highest 16 state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney 17 v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 18 Additionally, the petitioner must have specifically told the state court that he was raising a 19 federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme 20 Court reiterated the rule as follows: 21 22 23 24 25 26 27 28 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. Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: Our rule is that a state prisoner has not “fairly presented” (and thus exhausted) his 2 1 2 3 4 5 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 “selfevident," 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); . . . . 6 7 8 9 10 11 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. Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons v. Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001). Petitioner was convicted of multiple gang-related offenses on January 19, 2012. He 12 appealed to the California Court of Appeal. On October 15, 2015, the appellate court reversed 13 and remanded the case to the trial court. People v. Bell, 241 Cal.App.4th 315 (2015). Petitioner 14 filed a petition for review on the issue of whether a denial of a venue-change violated his due 15 process rights to an impartial jury under the Fifth, Sixth and Fourteenth Amendments of the 16 Constitution. Review was denied on January 27, 2016. Petitioner states he is presently in the 17 process of appealing again to the state appellate court following remand to the trial court. 18 The instant petition presents two claims for relief: 1) Petitioner alleges he was denied the 19 right a jury trial of a once-in-jeopardy plea; and 2) Petitioner was denied a change in venue in 20 violation of his due process rights; and 3) Petitioner was denied a bail hearing in violation of his 21 rights. Since ground two is the only ground that has been presented to the California Supreme 22 Court, the petition is a mixed petition containing exhausted and unexhausted claims. The Court 23 will recommend the petition be dismissed without prejudice to refiling once Petitioner exhausts 24 the state remedies. The Court will also recommend that Petitioner be granted leave to withdraw 25 his unexhausted claims and proceed solely on his exhausted claim. ORDER 26 27 28 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District Judge to the case. 3 1 RECOMMENDATION 2 Accordingly, the Court RECOMMENDS that the habeas corpus petition be DISMISSED 3 WITHOUT PREJUDICE for lack of exhaustion, and that Petitioner be granted leave to withdraw 4 his unexhausted claims rather than suffer dismissal. 5 This Findings and Recommendation is submitted to the United States District Court Judge 6 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 7 of the Local Rules of Practice for the United States District Court, Eastern District of California. 8 Within twenty-one days after being served with a copy, Petitioner may file written objections 9 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 10 and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 11 U.S.C. § 636 (b)(1)(C). Failure to file objections within the specified time may waive the right to 12 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 IT IS SO ORDERED. Dated: March 19, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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