(HC) Howard v. Superior Court Metropolitan Division of County of Kern

Filing 11

ORDER DIRECTING Clerk of Court to Assign District Judge; FINDINGS and RECOMMENDATION to Dismiss Unexhausted 1 Petition without Prejudice signed by Magistrate Judge Jennifer L. Thurston on 8/11/2020. Referred to Judge Unassigned DJ. Objections to F&R due within Twenty-One (21) Days. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAMONT J. HOWARD,
Petitioner,

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v.

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CATES, Warden,

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Respondent.

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Case No.: 1:20-cv-00933-JLT (HC)
ORDER DIRECTING CLERK OF COURT TO
ASSIGN DISTRICT JUDGE
FINDINGS AND RECOMMENDATION TO
DISMISS UNEXHAUSTED PETITION WITHOUT
PREJUDICE
[TWENTY-ONE DAY OBJECTION DEADLINE]

Petitioner filed a Petition for Writ of Habeas Corpus on June 5, 2020. (Doc. 1.) On July 13,

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2020, the Court issued an order to show cause why the petition should not be dismissed for failure to

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exhaust state remedies. (Doc. 5.) On July 27, 2020, Petitioner filed a response to the order to show

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cause, however, failed to indicate any information regarding exhaustion of his state remedies. (Doc.

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8.) Accordingly, the Court will recommend that the petition be dismissed without prejudice.

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DISCUSSION

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A.

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Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary

Preliminary Review of Petition

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

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plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in

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the district court. . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory

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Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus,
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either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an

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answer to the petition has been filed.

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B.

Exhaustion

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

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

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

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

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

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

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full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v.

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Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court was given a full

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and fair opportunity to hear a claim if the petitioner has presented the highest state court with the

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claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504

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U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis).

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

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

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Court reiterated the rule as follows:

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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.
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 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, see, e.g., Hiivala v. Wood, 195 F3d
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1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); .
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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.

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

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

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Petitioner fails to indicate any information about his appeals on the form petition and only

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includes information about a habeas petition filed in Kern County Superior Court. (See Doc. 1 at 2-3,

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9-14.) Also, in his response to the order to show cause, Petitioner failed to provide any information

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regarding exhaustion of his state remedies. (See Doc. 8.) Because it appears Petitioner has not

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presented his claims for federal relief to the California Supreme Court, the Court must dismiss the

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petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478,

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481 (9th Cir. 2001). The Court cannot consider a petition that is unexhausted. Rose v. Lundy, 455

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U.S. 509, 521-22 (1982).

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ORDER

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The Court DIRECTS the Clerk of Court to assign a district judge to the case.

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RECOMMENDATION

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Accordingly, the Court RECOMMENDS that the habeas corpus petition be SUMMARILY
DISMISSED without prejudice for lack of jurisdiction.

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This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within

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twenty-one days after being served with a copy, Petitioner may file written objections with the Court.

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Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §

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636 (b)(1)(C).

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Failure to file objections within the specified time may waive the right to appeal the District
Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

August 11, 2020

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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