Deltoro v. People of the State of California

Filing 5

FINDINGS and RECOMMENDATIONS recommending that the Petition be DISMISSED without prejudice for failure to exhaust state remedies re 1 Petition for Writ of Habeas Corpus filed by Gilibaldo Deltoro ;referred to Judge Drozd; new case number is 1:17-cv-1283 DAD-MJS (HC),signed by Magistrate Judge Michael J. Seng on 11/13/17. Objections to F&R due by 12/18/2017 (Martin-Gill, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 GILIBALDO DELTORO, 11 12 13 14 15 Petitioner, v. PEOPLE OF THE STATE OF CALIFORNIA, Respondent. Case No. 1:17-cv-01283-MJS (HC) ORDER FOR CLERK TO RANDOMLY ASSIGN MATTER TO A DISTRICT JUDGE FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR FAILURE TO EXHAUST STATE REMEDIES (ECF No. 1) 16 17 FOURTEEN (14) DAY DEADLINE 18 19 20 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 21 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a March 8, 2017 judgment of 22 the Tuolumne County Superior Court. He states that his appeal to the California Fifth 23 District Court of Appeal remains pending. (ECF No. 1 at 5.) Petitioner does not indicate 24 that he has pursued any other review of his conviction or presented his claims to the 25 California Supreme Court. It thus appearing that Petitioner failed to exhaust state 26 remedies before bringing this petition, the undersigned ordered Petitioner to show cause 27 why his action should not be dismissed. (ECF No. 4.) Petitioner did not respond and the 28 1 time for doing so has passed. Accordingly, the undersigned will recommend dismissal of 2 the action. 3 I. Exhaustion Requirement 4 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a 5 preliminary review of each petition for writ of habeas corpus. The Court must dismiss a 6 petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to 7 relief." Rule 4 of the Rules Governing § 2254 Cases; Hendricks v. Vasquez, 908 F.2d 8 490 (9th Cir. 1990). Otherwise, the Court will order Respondent to respond to the 9 petition. Rule 5 of the Rules Governing § 2254 Cases. 10 A petitioner who is in state custody and wishes to collaterally challenge his 11 conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 12 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court 13 and gives the state court the initial opportunity to correct the state's alleged constitutional 14 deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 15 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988). 16 A petitioner can satisfy the exhaustion requirement by providing the highest state 17 court with a full and fair opportunity to consider each claim before presenting it to the 18 federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 19 270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will 20 find that the highest state court was given a full and fair opportunity to hear a claim if the 21 petitioner has presented the highest state court with the claim's factual and legal basis. 22 Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9 (1992) 23 (factual basis). 24 Additionally, the petitioner must have specifically told the state court that he was 25 raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 26 232 F.3d 666, 669 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 27 F.3d 1098, 1106 (9th Cir.1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In 28 2 1 Duncan, the United States Supreme Court reiterated the rule as follows: 2 In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners "fairly present" 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. 3 4 5 6 7 8 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 9 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); . . . . 10 11 12 13 14 15 16 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. 17 18 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000). 19 Upon review of the instant petition for writ of habeas corpus, it appears that 20 Petitioner has not presented his claims to the highest state court, the California Supreme 21 Court. Petitioner was afforded the opportunity to provide additional information in this 22 regard, but failed to do so. Because the claims have not been presented to the state’s 23 highest court, the Court is unable to proceed to the merits of the petition. 28 U.S.C. 24 § 2254(b)(1). 25 II. Recommendation 26 It is HEREBY RECOMMENDED that the petition be dismissed without prejudice 27 for failure to exhaust state remedies. 28 3 1 The findings and recommendations are submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 3 thirty (30) days after being served with the findings and recommendations, any party 4 may file written objections with the Court and serve a copy on all parties. Such a 5 document should be captioned “Objections to Magistrate Judge’s Findings and 6 Recommendations.” Any reply to the objections shall be served and filed within fourteen 7 (14) days after service of the objections. The parties are advised that failure to file 8 objections within the specified time may result in the waiver of rights on appeal. 9 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 10 F.2d 1391, 1394 (9th Cir. 1991)). 11 12 13 IT IS SO ORDERED. Dated: November 13, 2017 /s/ 14 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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