Houze, II v. State of California

Filing 21

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 1/26/2012 RECOMMENDING that pending 1 habeas petition be dismissed without prejudice. Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LAMONT A. HOUZE, II, 11 Petitioner, No. CIV S-11-1549 GEB GGH P vs. 12 13 STATE OF CALIFORNIA, 14 Respondent. 15 16 FINDINGS & RECOMMENDATIONS / I. Introduction 17 Petitioner is a former state prisoner proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was found guilty by a jury of felony 19 stalking and was sentenced to two years in prison, and has since been released.1 20 Petitioner raises four claims in the instant petition: 1) the stalking conviction 21 should have been a misdemeanor; 2) inconsistent witness testimony; 3) petitioner did not commit 22 a malicious act to support a stalking finding; and 4) petitioner never made a threat to support a 23 stalking finding. 24 \\\\\ 25 26 1 Petitioner represented himself at trial. 1 1 II. Background 2 Petitioner filed this instant action on June 9, 2011, and the case was transferred to 3 the undersigned on June 20, 2011. Four days later on June 24, 2011, the undersigned ordered 4 respondent to file a response to the petition. An answer was timely filed and petitioner filed his 5 second reply on September 1, 2011, thus the case was fully briefed. Two months later petitioner 6 filed a notice to the court requesting that the case be reviewed in a reasonable time. In December 7 2011, petitioner filed a writ of mandamus with the Ninth Circuit stating his unhappiness that this 8 court had not yet ruled on his petition. The Ninth Circuit issued an order on January 11, 2012, 9 that petitioner’s writ of mandamus be denied without prejudice to the filing of a new petition if 10 this district court had not ruled on the pending habeas corpus within 90 days. Doc. 20. 11 However, petitioner has presented both exhausted and unexhausted claims. A 12 petitioner satisfies the exhaustion requirement by providing the highest state court with a full and 13 fair opportunity to consider all claims before presenting them to the federal court. Picard v. 14 Connor, 404 U.S. 270, 276, 92 S.Ct. 509 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th 15 Cir. 1985). 16 Claims one and three were not raised on direct appeal with the California Court of 17 Appeal. Lodged Document (Lod. Doc.) 1. Petitioner raised these claims for the first time on his 18 pro se direct appeal to the California Supreme Court which exercised its discretion and did not 19 review the petition. Lod. Docs. 7, 8. California Rules of Court, Rule 8.500(b) (review of 20 appellate decision discretionary). Importantly, the California Supreme Court will ordinarily not 21 consider on direct review claims that were not timely presented to the California Court of 22 Appeal. California Rules of Court, Rule 8.500(c)(1). As a result, these claims were not 23 reviewed on the merits on direct review by the California Supreme Court. 24 Petitioner also raised these claims on habeas review to the Sacramento County 25 Superior Court and the California Court of Appeal. Lod. Docs. 9, 11. However, petitioner never 26 raised the claims on habeas review with the California Supreme Court, as petitioner never filed a 2 1 habeas petition in the California Supreme Court. As the California Supreme Court has never had 2 a fair opportunity to review the merits of this claim, the claim is unexhausted. See Castille v. 3 Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 1060 (1989) (claims are not fairly presented if they 4 are raised in a procedural context in which the merits will not be considered absent special 5 circumstances); Casey v. Moore, 386 F.3d 896, 916-18 (9th Cir. 2004) (holding that a state 6 prisoner had not exhausted his claims by presenting them for the first and only time in a petition 7 for discretionary review with the state’s highest court, i.e., in a context in which the merits would 8 not be reviewed).2 9 Claim two was only raised on habeas review to the Sacramento County Superior 10 Court and the California Court of Appeal. Lod. Docs. 9, 11. However, petitioner never raised 11 this claim in the California Supreme Court. Claim four was properly exhausted. 12 The United States Supreme Court has held that a federal district court may not 13 entertain a petition for habeas corpus unless the petitioner has exhausted state remedies with 14 respect to each of the claims raised. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198 (1982). 15 Where some claims are exhausted and others are not (i.e., a “mixed” petition), the court must 16 dismiss the petition without prejudice. Rose, 455 U.S. at 510, 521–22. 17 Generally, a court may stay a petition and hold it in abeyance pursuant to either 18 Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), or Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 19 1528, 161 L.Ed.2d 440 (1995). See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). 20 However, petitioner has not requested a stay in his opposition, nor has he demonstrated good 21 cause for a Rhines stay. Therefore, this court rules on the pending habeas petition that it should 22 23 24 25 26 2 Casey continued with analyzing the petition under a procedural default rubric in that the state involved (Washington) had a definitive statute of limitations for filing collateral review. California has no such definitive filing time for the filing of habeas petitions, and if procedural default is to be entertained for the late filing of habeas petition, it must first be established by the holdings of the California state courts, i.e., the California state courts are not bound to find procedural default on a timeliness basis as exceptions to filing within a “reasonable time” need to be analyzed by the state courts. 3 1 be dismissed without prejudice. 2 3 Accordingly, IT IS HEREBY RECOMMENDED that the pending habeas petition should be dismissed without prejudice. 4 If petitioner files objections, he shall also address if a certificate of appealability 5 should issue and, if so, as to which issues. A certificate of appealability may issue under 28 6 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 7 constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate 8 which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3). 9 These findings and recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 11 days after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 14 shall be served and filed within seven days after service of the objections. The parties are 15 advised that failure to file objections within the specified time waives the right to appeal the 16 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: January 26, 2012 18 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 19 20 ggh: ab houz1549.ord 21 22 23 24 25 26 4

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