Moreno v. Frauenheim

Filing 7

ORDER DISMISSING Petition without Prejudice for Failure to Exhaust State Remedies; ORDER Directing Clerk of Court to Enter Judgment; ORDER Declining Issuance of Certificate of Appealability signed by Magistrate Judge Jennifer L. Thurston on 11/07/2017. CASE CLOSED.(Flores, E)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

ROBERTO CISNEROS MORENO,

12

Petitioner,

13
14

v.
SCOTT FRAUENHEIM, Warden,

15

No. 1:17-cv-01306-JLT (HC)
ORDER DISMISSING PETITION
WITHOUT PREJUDICE FOR FAILURE
TO EXHAUST STATE REMEDIES
ORDER DIRECTING CLERK OF COURT
TO ENTER JUDGMENT

Respondent.
ORDER DECLINING ISSUANCE OF
CERTIFICATE OF APPEALABILITY

16
17

Petitioner filed a habeas petition on October 2, 2017, challenging his 2012 conviction in

18
19

Tulare County Superior Court of multiple sex offenses. The petition appeared to be unexhausted,

20

so the Court issued an order directing Petitioner to show cause why it should not be dismissed

21

without prejudice. Petitioner has not responded to the Court’s order within the allotted time.

22

Accordingly, the Court will dismiss the petition without prejudice for failure to exhaust.
DISCUSSION

23
24
25

A.

Preliminary Review of Petition
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 of
1

1

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).

4

B.

Exhaustion

5

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

6

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

7

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

8

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

9

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

10

A petitioner can satisfy the exhaustion requirement by providing the highest state court

11

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

12

Duncan v. Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court

13

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

14

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

15

v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis).

16

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

17

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

18

Court reiterated the rule as follows:

19
20
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
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
2

1
2
3

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); . . . .

4
5
6

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.

7

Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons

8

v. Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001).

9

Petitioner brings one claim of ineffective assistance of counsel. He states he filed an

10

appeal in the California Court of Appeal, but that appeal challenged a restitution fine and an

11

incorrect abstract of judgment. It appears he has not filed any other state court actions. Because

12

it appears Petitioner has not presented his claims for federal relief to the California Supreme

13

Court, the Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.

14

2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The Court cannot consider a petition

15

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

16
17

CERTIFICATE OF APPEALABILITY
In addition, the Court declines to issue a certificate of appealability. A state prisoner

18

seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of

19

his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537

20

U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of

21

appealability is 28 U.S.C. § 2253, which provides as follows:

22

(a)
In a habeas corpus proceeding or a proceeding under section 2255 before a district
judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit
in which the proceeding is held.

23
24
25

(b)
There shall be no right of appeal from a final order in a proceeding to test the
validity of a warrant to remove to another district or place for commitment or trial a person
charged with a criminal offense against the United States, or to test the validity of such person's
detention pending removal proceedings.

26
27
28

(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may
not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention
3

1

complained of arises out of process issued by a State court; or

2

(B) the final order in a proceeding under section 2255.

3

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has
made a substantial showing of the denial of a constitutional right.

4
5

(3) The certificate of appealability under paragraph (1) shall indicate which specific issue
or issues satisfy the showing required by paragraph (2).

6

If a court denies a petitioner’s petition, the court may only issue a certificate of

7

appealability when a petitioner makes a substantial showing of the denial of a constitutional right.

8

28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that

9

“reasonable jurists could debate whether (or, for that matter, agree that) the petition should have

10

been resolved in a different manner or that the issues presented were ‘adequate to deserve

11

encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting

12

Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

13

In the present case, the Court finds that Petitioner has not made the required substantial

14

showing of the denial of a constitutional right to justify the issuance of a certificate of

15

appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not

16

entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to

17

proceed further. Thus, the Court DECLINES to issue a certificate of appealability.
ORDER

18
19

Accordingly, the Court ORDERS:

20

1. The petition is DISMISSED WITHOUT PREJUDICE for failure to exhaust state
remedies;

21
22

2. The Clerk of Court is DIRECTED to enter judgment and close the case; and

23

3. The Court DECLINES to issue a certificate of appealability. This terminates this
action in its entirety.

24
25
26
27

IT IS SO ORDERED.
Dated:

November 7, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

28
4