Fadden v. Vasquez

Filing 4

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH LEAVE TO AMEND, signed by Magistrate Judge Sheila K. Oberto on 3/23/17: 30-Day Deadline. (Attachments: # 1 2254 Petition - blank form)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BARRETT JUSTON FADDEN,

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Petitioner,

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v.

No. 1:17-cv-00398-SKO HC
ORDER DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS WITH
LEAVE TO AMEND

PAT L. VASQUEZ, Warden,

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Respondents.

(Doc. 1)

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Screening Memorandum

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Petitioner Barrett Juston Fadden is a state prisoner proceeding pro se with a petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court has reviewed the habeas petition

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(Doc. 1) and determined that the petition cannot proceed as filed. Accordingly, the Court will

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dismiss the petition with leave to amend to permit Petitioner to correct the noted deficiencies.

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I.

Preliminary Screening

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

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

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plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the

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Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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A petition for habeas corpus should not be dismissed without leave to amend unless it appears

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that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson,

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440 F.2d 13, 14 (9th Cir. 1971).

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II.

Ground One is Not Cognizable in a Federal Habeas Petition

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Habeas corpus is the exclusive remedy for a state prisoner who challenges the fact of

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duration of his confinement and seeks immediate or speedier release. Reiser v. Rodriguez, 411

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U.S. 475, 500 (1973). In general, § 2254 is intended to redress violations of the U.S.

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Constitution. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

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Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of
the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5

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(1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme
malfunctions" in state criminal justice proceedings. Id. Under AEDPA, a petitioner can prevail
only if he can show that the state court's adjudication of his claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams,
529 U.S. at 413.
"By its terms, § 2254(d) bars relitigation of any claim 'adjudicated on the merits' in state

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court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)." Harrington v.

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Richter, 562 U.S. 86, 98 (2011).

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Petitioner’s sole ground for relief alleges that he was convicted in violation of a
statutory prohibition against multiple punishments for a single physical act. Petitioner identifies

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the statute only as § 654, without specifying a federal or state statutory title. He fails to set
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forth any factual basis for this conclusory allegation. As a result, the Court cannot evaluate

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whether Petitioner’s claim meets the requirement of § 2254 of (1) an unreasonable application

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of, clearly established Federal law, as determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable determination of the facts in light
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of the evidence presented in the State court proceeding. If Petitioner chooses to amend his

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petition, as this screening order permits him to do, he must specifically identify the statutory

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source of the alleged legal violation and briefly, but completely, explain the facts supporting the

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allegation.

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III.

Petition Does Not Allege Exhaustion
A petitioner who is in state custody and wishes to collaterally challenge his conviction by

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a petition for writ of habeas corpus must first exhaust state judicial remedies. 28 U.S.C. §
2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court

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the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v.

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Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn,

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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
with a full and fair opportunity to consider each claim before presenting it to the federal court.

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Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971);

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Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state

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court was given a full and fair opportunity to hear a claim if the petitioner has presented the

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highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365; Kenney v.

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Tamayo-Reyes, 504 U.S. 1, 8 (1992).

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The petition alleges that Petitioner appealed his conviction to the California Court of

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Appeal, but does not allege that Petitioner also appealed the conviction to the California Supreme
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Court. If the California Supreme Court has not reviewed Petitioner’s claim, Petitioner has not

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exhausted state remedies, and the Court must dismiss the petition. If Petitioner has pursued his

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claim to the California Supreme Court, the amended petition should disclose the relevant

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information requested at paragraph 9(e) of the petition form.
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IV.

Conclusion and Order
Accordingly, the Court hereby ORDERS:

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1.
The petition for writ of habeas corpus is hereby
DISMISSED with leave to amend.

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2.
The Clerk of Court shall send Petitioner a copy of this order
and a form for a Petition under 28 U.S.C. § 2254 for Writ of Habeas
Corpus by a Person in State Custody.

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3.
Within 30 days of this order, Petitioner shall file an
amended petition correcting the deficiencies noted in this order.
Petitioner shall sign the petition under penalty of perjury where
indicated.

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4.
If Petitioner fails to file an amended petition within thirty
(30) days from the date of this order, the case will be dismissed
without further notice for lack of prosecution.

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IT IS SO ORDERED.
Dated:

March 23, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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