(HC) Quair v. Skiles

Filing 7

FINDINGS and RECOMMENDATIONS that the 1 Petition for Writ of Habeas Corpus be Dismissed Without Prejudice and Without Leave to Amend, signed by Magistrate Judge Christopher D. Baker on 11/18/2022. Referred to Judge Thurston; Objections to F&R due within thirty (30) days. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID SABINO QUAIR, III,

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Petitioner,
v.

Case No. 1:22-cv-01386-JLT-CDB (HC)
FINDINGS AND RECOMMENDATIONS THAT
THE PETITION FOR WRIT OF HABEAS CORPUS
BE DISMISSED WITHOUT PREJUDICE AND
WITHOUT LEAVE TO AMEND

JON M. SKILES,
(ECF No. 1)
Respondent.

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Petitioner David Sabino Quair, III (“Petitioner”) is a state prisoner proceeding pro se with a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). The petition seeks

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review of a judgment of conviction in the Superior Court of California for the County of Fresno. Id.

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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. Pro se habeas corpus petitions are to be liberally

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construed. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the Court must dismiss a

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petition “[i]f it plainly appears from the petition…that the petitioner is not entitled to relief.” Habeas

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Rule 4; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Habeas Rule 2(c) requires

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that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting

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each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition

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must state facts that point to a real possibility of a constitutional error. Mayle v. Felix, 545 U.S. 644,
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655 (2005) (“Habeas Corpus Rule 2(c) is more demanding”). Allegations in a petition that are vague,

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conclusory, or palpably incredible are subject to summary dismissal. Hendricks, 908 F.2d at 491. A

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petition for habeas corpus should not be dismissed without leave to amend unless it appears that no

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tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson, 440 F.2d 13,

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14 (9th Cir. 1971) (per curiam).

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Procedural and Factual Background

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Petitioner filed this instant petition on October 27, 2022. (ECF No. 1). On January 12, 2022,

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he was convicted in the Superior Court of California County of Fresno and sentenced on March 3,

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2022. Id. at 1. Petitioner claims he pled guilty and was convicted of (1) robbery and (2) use of tear

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gas or a tear gas weapon for a purpose other than self-defence. Id. at 1-2; See Cal. Pen. Code §§ 211,

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22810(g)(1). Petitioner states he was sentenced to six years in prison. (ECF No. 1 at 1). However,

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the state court’s minute order and felony abstract of judgment reflect Petitioner was sentenced to a

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three-year term for conviction of second-degree robbery only. Id. at 26-30. Online records of the

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Fresno County Superior Court confirm that the tear gas charge was dismissed.1

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At some point, Petitioner states he directly appealed the state court’s decision. (ECF No. 1 at

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2). However, Petitioner only cites the Fresno County Superior Court as the court he appealed to. Id.

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Moreover, Petitioner’s direct appeal appears to be a petition for writ of habeas corpus. See Id. at 2, 6-

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11, 17-18. On October 3, 2022, the Fresno County Superior Court issued an order denying

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Petitioner’s petition for writ of habeas corpus. Id. at 17-18. Petitioner asserts he is “Appealing now”

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the state court’s decision to deny his petition for writ of habeas corpus. Id. at 8. Petitioner states his

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current place of confinement is California State Prison in Chino, California. Id. at 1.

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Petitioner’s Claims

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Petitioner first argues he is entitled to relief in a habeas corpus proceeding as the Romero

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motion filed by the Public Defenders Office was not upheld at filing. Id. at 5. Specifically, Petitioner

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claims his Cal. Pen. Code § 22810(g)(1) count was a “strikeable” [sic] offense and should have been

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stricken from the record. Id. at 5-8.

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https://www.fresno.courts.ca.gov/online-services/case-information (last accessed Nov. 18,

2022).
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Next, Petitioner asserts he negotiated a plea agreement of five years, but Judge Stiles imposed

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an “unlawful sentence by force” of six years. Id. at 7-8. Petitioner contends the sentence “was not

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based on Dept 34’s choice at sentencing…and the term set forth verbally is not set forth in an

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applicable statute.” Id. at 8. Further, Petitioner claims the court did not use or record the “true

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sentencing guidelines presented by counsel.” Id. at 10. Lastly, Petitioner asserts he was unable to

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exhaust his state remedies as all his legal mail is censored.

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Discussion and Analysis

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Petitioner has failed to provide an adequate petition for writ of habeas corpus. First, Petitioner

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does not name an appropriate respondent to the petition. A petitioner seeking habeas corpus relief

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under 28 U.S.C. § 2254 must name the state officer having custody of him as the respondent to the

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petition. Habeas Rule 2(a); Smith v. Idaho, 392 F.3d 350, 354 (9th Cir. 2004) (citing Stanley v.

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California Supreme Court, 21 F.3d 359. 360 (9th Cir. 1996)). Generally, the person having custody of

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an incarcerated petitioner is the warden of the prison in which the petitioner is incarcerated because

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the warden has “day-to-day control over” the petitioner and thus can produce “the body of the

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petitioner.” Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (quotations omitted) (per

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curiam). The chief officer in charge of the state penal institutions can also serve as an appropriate

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respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996). Here, Petitioner only names

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“Judge Jon M. Skiles” as a respondent to his petition. (ECF No. 1 at 2). Judge Skiles is not the

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warden or chief officer of the institution where Petitioner is confined and does not have day-to-day

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control over Petitioner. Petitioner’s failure to name a proper respondent requires dismissal of his

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habeas corpus petition for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult

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Auth., 423 F.2d 1326, 1326 (9th Cir. 1970).

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Petitioner’s habeas corpus petition also fails to show he exhausted state judicial remedies. A

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petitioner who is in state custody and wishes to collaterally challenge his convictions by a petition for

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

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

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the state’s alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose

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v. Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by providing
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the highest state court with the necessary jurisdiction a full and fair opportunity to consider each claim

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before presenting it to the federal court and demonstrating that no state remedy remains available.

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Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citing Picard v. Connor, 404 U.S. 270, 275

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(1971)). When none of a petitioner’s claims has been presented to the highest state court as required,

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the Court must dismiss the petition. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez

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v. Rice, 276 F.3d 478, 481 (9th Cir. 2001).

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Petitioner only alleges he appealed his case to the Fresno County Superior Court. See (ECF

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No. 1 at 2, 6-11, 17-18) (Petitioner’s only “appeal” appears to stem from a petition for writ of habeas

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corpus to the state trial court). Petitioner has failed to allege he has provided the highest state court,

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the Supreme Court of California, with a full and fair opportunity to consider his petition on direct or

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collateral appeal. Petitioner’s claim he was unable to exhaust state remedies as all his mail is censored

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is unavailing as Petitioner did file a habeas petition to the state trial court without issue. Therefore,

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Petitioner’s petition must be dismissed as the Court cannot consider a petition that is entirely

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unexhausted. Rose, 455 U.S. at 521-22.

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Petitioner’s habeas petition also should be dismissed for failure to raise a cognizable federal

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claim. To obtain federal habeas relief from a state court conviction or sentence, a petitioner must

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show that he is in custody in violation of the Constitution or laws or treaties of the United States. See

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28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam). A federal court may

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not issue habeas relief for a perceived error of state law. Pulley v. Harris, 465 U.S. 37, 41 (1984); See

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Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989) (“[E]rrors of state law do not concern us

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unless they rise to the level of a constitutional violation.”).

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Petitioner does not specifically allege his constitutional rights are being violated. Instead,

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Petitioner challenges the state trial court’s alleged failure to grant his Romero motion to strike his §

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22810(g)(1) count and alleged failure to adopt a purported plea agreement. The Court cannot issue

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habeas relief for Petitioner’s alleged failure to grant his Romero motion, as the decision to strike prior

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felonies in a response to a Romero motion lies within the state trial court’s discretion. People v.

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Superior Court (Romero), 13 Cal. 4th 497, 508 (1996); see Brown v. Mayle, 283 F.3d 1019, 1040 (9th

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Cir. 2002) (vacated and remanded on other grounds in Mayle v. Brown, 538 U.S. 901 (2003) (finding a
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petitioner’s claim that he should be resentenced in light of Romero was not cognizable on federal

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habeas review)). While a federal court may vacate a state sentence imposed in violation of due

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process (e.g., Ortiz v. Tampkins, No. 2:16-cv-00428-JKS, 2020 WL 949259, *10 (E.D. Cal. Feb. 27,

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2020)), Petitioner here does not allege that his sentence was the result of a due process violation.

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Petitioner also fails to state a cognizable claim as to the state trial court’s alleged failure to

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adopt a purported plea agreement. A criminal defendant’s right to due process entitles him/her/them

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to enforce the terms of a plea agreement. Santobello v. New York, 404 U.S. 257, 261-62 (1971).

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Petitioner claims he negotiated a plea agreement for a five-year sentence, which is higher than what

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the record indicates Petitioner received. (ECF No. 1 at 7-8, 26-30). Petitioner provides no facts to

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support his allegation that he possessed a plea agreement for a five-year sentence, and that said

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agreement was breached. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations

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which are not supported by a statement of specific facts do not warrant habeas relief.”). Therefore,

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Petitioner fails to state a claim for habeas relief.

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Conclusion and Recommendations

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Petitioner’s habeas corpus petition fails to name an appropriate respondent, fails to allege he

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exhausted state judicial remedies, and fails to state a cognizable claim. The petition for writ of habeas

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corpus (ECF No. 1) should be dismissed without prejudice and without leave to amend as Petitioner

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has failed to fully exhaust his state judicial remedies. See Id. at 8 (Petitioner states he has not fully

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exhausted state judicial remedies and is “Appealing now”). Petitioner may file a new habeas action in

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federal court that identifies the appropriate respondent and raises cognizable federal claims if he ever

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exhausts state judicial remedies, assuming any such petition is filed within the applicable statute of

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limitations.

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Based on the foregoing, the Court HEREBY RECOMMENDS that:

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1. The Petition for Writ of Habeas Corpus (ECF No. 1) be dismissed without prejudice and

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without leave to amend as it plainly appears to fail to name the proper respondent, raises

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unexhausted claims, and fails to raise a cognizable federal claim; and

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2. The Clerk of Court be directed to close this case.

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These findings and recommendations will be submitted to the United States district judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty days after

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being served with these findings and recommendations, Petitioner may file written objections with the

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Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiffs are advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

November 18, 2022

___________________

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UNITED STATES MAGISTRATE JUDGE

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