Anthony v. Garza
Filing
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FINDINGS and RECOMMENDATIONS to Deny Request to Stay the Petition and Hold it in Abeyance Pending Exhaustion of State Court Remedies re 18 , signed by Magistrate Judge Michael J. Seng on 3/27/18. Referred to Judge Drozd. Thirty Day Objection Deadline. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARK ANTHONY,
Petitioner,
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v.
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Case No. 1:18-cv-00096-DAD-MJS (HC)
JOHN GARZA, Warden,
FINDINGS AND RECOMMENDATION TO
DENY REQUEST TO STAY PETITION AND
HOLD IT IN ABEYANCE PENDING
EXHAUSTION OF STATE COURT
REMEDIES
Respondent.
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(ECF No. 18)
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THIRTY (30) DAY OBJECTION DEADLINE
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. Before the Court is Petitioner’s motion to stay the
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petition and hold it in abeyance pending his exhaustion of state court remedies. For the
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reasons stated below, the undersigned will recommend that the motion be denied.
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I.
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Procedural History
Petitioner initiated this action on December 8, 2017 with the filing of a petition
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challenging the August 13, 2017 decision of the California Board of Parole Hearings,
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denying him parole. (ECF No. 1.) Therein, Petitioner did not state whether he had
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presented his claims to the California Supreme Court. He cited to a California Supreme
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Court decision issued in 2017 (Case No. S238533), but that petition appeared to
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address Petitioner’s underlying conviction. Additionally, a review of the California
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Supreme Court docket reflects that the petition in Case No. S238533 was disposed of on
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March 15, 2017, prior to the Board of Parole Hearings’ decision at issue in the instant
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petition.
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It appearing that Petitioner did not exhaust his state remedies with respect to the
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claims presented here, the undersigned ordered Petitioner to show cause why his action
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should not be dismissed. (ECF No. 15.) Petitioner did not respond. Accordingly, the
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undersigned recommended dismissal of the petition. (ECF No. 17.) Those findings and
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recommendations remain pending before the District Judge.
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Petitioner filed no specific objections to the findings and recommendations, but
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instead filed the instant request to stay the petition and hold it in abeyance pending his
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exhaustion in state court. (ECF No. 18.) He concedes that he has not exhausted his
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claims, but states that, on February 20, 2018, he filed a petition for writ of habeas corpus
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in the Kern County Superior Court and he intends to pursue it through the California
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Court of Appeal and California Supreme Court, if necessary.
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II.
Legal Standard
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The petition at issue here is fully unexhausted. A district court has the discretion
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to stay and hold in abeyance fully unexhausted petitions under the circumstances set
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forth in Rhines v. Weber, 544 U.S. 269 (2005). Mena v. Long, 813 F.3d 907, 912 (9th
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Cir. 2016).
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Under Rhines, a district court abuses its discretion in denying a stay if (1) the
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petitioner had good cause for his failure to exhaust, (2) his unexhausted claims are
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potentially meritorious, and (3) there is no indication that the petitioner engaged in
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intentionally dilatory litigation tactics. Rhines, 544 U.S. at 278. If all three of these
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circumstances are found, the court should stay the habeas case and hold it in abeyance
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while the petitioner returns to state court to present his unexhausted claims.
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III.
Discussion
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The Court begins by expressing serious doubt as to whether Petitioner has
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presented a potentially meritorious claim. Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir.
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2005) (holding that claim is “plainly meritless” only if “it is perfectly clear that the
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petitioner has no hope of prevailing”). Federal habeas review of state parole decisions is
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extremely limited. A district court may entertain a petition for a writ of habeas corpus by a
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person in custody pursuant to the judgment of a state court only on the ground that the
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custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C.
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§§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v.
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Corcoran, 562 U.S. 1, 5 (2010).
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California law creates a liberty interest in parole that is protected by the
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Fourteenth Amendment’s Due Process Clause. See Swarthout v. Cooke, 562 U.S. 216,
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219 (2011). However, “[t]here is no right under the Federal Constitution to be
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conditionally released before the expiration of a valid sentence, and the States are under
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no duty to offer parole to their prisoners.” Id. at 220. Instead, the existence of a State-
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created liberty interest requires only that fair procedures be implemented for its
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vindication. Id.
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In this regard, the Constitution requires only that a potential parolee be provided
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an opportunity to be heard and a statement of reasons why parole was denied.
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Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979);
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Swarthout, 562 U.S. at 220. Prisoners who are “allowed to speak at their parole hearings
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and to contest the evidence against them, [are] afforded access to their records in
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advance, and [are] notified as to the reasons why parole was denied” have been
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afforded all of the process due under the Fourteenth Amendment. Swarthout, 562 U.S.
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at 221. This Court may not go further to inquire whether the procedures produced “the
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result that the evidence required” or whether the state has “unreasonably determined the
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facts in light of the evidence.” Id. at 220-21.
Here,
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Petitioner
contends
that
the
Parole
Board’s
determination
was
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unreasonable in light of the facts. Specifically, he contends that the Board relied on a
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conviction history that included a crime (kidnapping) that Petitioner did not commit. He
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contends that this error or fabrication resulted from a history of racial discrimination and
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collusion between the Sacramento District Attorney’s Office and the Parole Board.
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As stated, however, the Court cannot review whether the facts presented at the
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hearing supported the Parole Board’s determination. And, while Petitioner’s claims of
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bias on the part of the decision-maker may facially implicate the Due Process clause,
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they appear to be based entirely on speculation.
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In any event, even assuming that Petitioner has presented a potentially
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meritorious claim, he has not shown good cause for his prior failure to exhaust and the
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Court has no basis to determine whether or not Petitioner has engaged in dilatory
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tactics. Petitioner offers no explanation as to why he did not sooner exhaust his claims.
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IV.
Conclusion and Recommendation
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Based on the foregoing, Petitioner has not met the requirements for a stay under
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Rhines. Accordingly, it is HEREBY RECOMMENDED that his request to stay the petition
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and hold it in abeyance be DENIED.
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The findings and recommendation are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
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THIRTY (30) days after being served with the findings and recommendation, Petitioner
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may file written objections with the Court. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendation.” Petitioner is advised
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that failure to file objections within the specified time may result in the waiver of rights on
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appeal.
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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.
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IT IS SO ORDERED.
Dated:
March 27, 2018
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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