Houze v. State of California

Filing 6

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 3/1/2012 RECOMMENDING that petitioner's 2 motion to proceed ifp be denied; petitioner's 1 application for writ of habeas corpus be dismissed without prejudice for failure to exhaust state court remedies; and this action be closed. Referred to Judge Lawrence K. Karlton; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAMONT A. HOUZE, II,

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Petitioner,

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No. CIV S-12-0251 LKK DAD P

vs.

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STATE OF CALIFORNIA,

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Respondent.

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FINDINGS AND RECOMMENDATIONS
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Petitioner, a former state prisoner proceeding pro se, has filed a petition for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma

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pauperis.

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PRELIMINARY SCREENING

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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to

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dismiss a petition if it “plainly appears from the face of the petition and any exhibits annexed to

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it that the petitioner is not entitled to relief in the district court. . . .” Rule 4, Rules Governing

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Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may

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dismiss a petition for writ of habeas corpus at several stages of a case, including “summary

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dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the

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answer and petition are considered; or a dismissal after consideration of the pleadings and an

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expanded record.”

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BACKGROUND

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On January 31, 2012, petitioner commenced this action by filing a petition for writ

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of habeas corpus. Therein, he alleges that on August 20, 2009, a Sacramento County Superior

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Court jury found him guilty of stalking. The trial court sentenced petitioner to two years in state

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prison. His judgment of conviction was affirmed by the California Court of Appeal and his

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Petition for Review was denied by the California Supreme Court. In his habeas petition pending

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before this court, petitioner asserts the following claims: (1) his conviction was based on

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inconsistent witness testimony; and (2) & (3) his stalking conviction should have been deemed a

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misdemeanor offense and not a felony. (Pet. at 5-6.)

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PETITIONER’S PRIOR PROCEEDINGS

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The court’s own records reveal that petitioner previously filed a petition for writ

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of habeas corpus in this court attacking the same underlying state court conviction. See Case No.

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CIV S-11-1549 GEB GGH.1 In that previously-filed federal habeas action, petitioner raised four

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claims: (1) his stalking conviction should have been deemed a misdemeanor and not a felony;

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(2) his conviction was based on inconsistent witness testimony; (3) he did not commit a

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malicious act to support a stalking finding; and (4) he never made a threat to support a stalking

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finding. See Case No. CIV S-11-1549 GEB GGH.

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On January 26, 2012, Magistrate Judge Gregory G. Hollows issued findings and

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recommendations, recommending petitioner’s application for writ of habeas corpus in that case

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be dismissed without prejudice. After reviewing the petition, respondent’s answer, and

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petitioner’s traverse, Magistrate Judge Hollows determined that petitioner had raised both

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exhausted and unexhausted claims in his petition. Specifically, petitioner’s claims that his

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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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stalking conviction should have been deemed a misdemeanor and not a felony, that his

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conviction was based on inconsistent witness testimony, and that he did not commit a malicious

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act to support a conviction for stalking were all unexhausted. The only claim petitioner had

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exhausted was his claim that he never made a threat to support a conviction for stalking.

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Magistrate Judge Hollows advised petitioner that a federal district court cannot grant a petition

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for writ of habeas corpus unless the petitioner has exhausted his state court remedies, and while a

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federal court can stay a petition and hold it in abeyance, petitioner had not requested a stay or

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demonstrated good cause for a stay. Id.

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On February 15, 2012, District Judge Garland E. Burrell, Jr. adopted the findings

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and recommendations in full and dismissed the petition without prejudice. Judge Burrell also

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declined to issue a certificate of appealability. Id.

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ANALYSIS

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The exhaustion of state court remedies is a prerequisite to the granting of a

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petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must

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be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3).2 A waiver of exhaustion,

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thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by

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providing the highest state court with a full and fair opportunity to consider all claims before

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presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v.

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Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986).

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For the same reasons discussed in Magistrate Judge Hollows’ findings and

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recommendations in Case No. CIV S-11-1549 GEB GGH, the court finds that the claims in

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A petition may be denied on the merits without exhaustion of state court remedies. 28
U.S.C. § 2254(b)(2).
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petitioner’s pending habeas petition are unexhausted.3 In this regard the court notes that in his

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form habeas petition filed in this action, petitioner acknowledges that has still not presented any

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of his claims to the California Supreme Court on direct appeal or through a petition for writ of

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habeas corpus. (Pet. at 3-4.) Accordingly, the court concludes that this action should be

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dismissed without prejudice due to petitioner’s failure to exhaust his claims by fairly presenting

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them to the California Supreme Court.

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CONCLUSION

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Petitioner’s motion to proceed in forma pauperis (Doc. No. 2) be denied;

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2. Petitioner’s application for writ of habeas corpus (Doc. No. 1) be dismissed
without prejudice for failure to exhaust state court remedies; and

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3. This action be closed.

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These findings and recommendations 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)(l). Within fourteen

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days after being served with these findings and recommendations, petitioner may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge's

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Findings and Recommendations.” Petitioner is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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In any objections he elects to file, petitioner may address whether a certificate of

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appealability should issue in the event he files an appeal of the judgment in this case. See Rule

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Magistrate Judge Hollows determined that petitioner had exhausted one of his claims in
the petition in that case. However, petitioner has not asserted that exhausted claim in his pending
petition.
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11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a

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certificate of appealability when it enters a final order adverse to the applicant).

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DATED: March 1, 2012.

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DAD:9
houz0151.156

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