Chestang v. Warden

Filing 14

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 07/13/12 ORDERING the clerk of the court assign a District Judge to this case. U.S. District Judge John A. Mendez randomly assigned to this case. Also, RECOMMEN DING that Respondent's 05/29/12 motion to dismiss be denied; and respondent be directed to file his answer within 21 days of the adoption of the foregoing findings and recommendations. MOTION to DISMISS 9 referred to Judge John A. Mendez. Objections due within 21 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL K. CHESTANG,

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Petitioner,

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No. CIV S-12-0749 CKD P

vs.

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WARDEN, CSP SOLANO,

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Respondent.

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ORDER AND
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FINDINGS AND RECOMMENDATIONS

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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a prison disciplinary proceeding

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finding that he unlawfully possessed controlled substances for sale or distribution and the loss of

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160 days sentence credit which resulted from that finding. Respondent has filed a motion asking

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that this matter be dismissed for failure to exhaust state court remedies.

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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). A petitioner satisfies the exhaustion

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requirement by providing the highest state court with a full and fair opportunity to consider all

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

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It is petitioner’s burden to demonstrate that he has exhausted state court remedies with respect to

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his claims. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (statement by petitioner

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that state court remedies are exhausted insufficient to preclude dismissal for failure to exhaust).

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Petitioner presented the claim presented in this action to the California Court of

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Appeal via a petition for writ of habeas corpus. Pet at. 4.1 The petition was denied on June 30,

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2011 for failure to exhaust administrative remedies before proceeding to court. Id. at 47.

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Petitioner then presented his claim to the California Supreme Court also through a petition for

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writ of habeas corpus. Id. at 4. On February 15, 2012, the petition was denied without further

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comment. Id. at 48. In Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) the Supreme Court found

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that when the California Supreme Court denies a state habeas petition without comment, there is

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a presumption that the petition was denied for the same reasons as the Court of Appeal petition if

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reasons were given in support of that denial. Respondent argues that by virtue of the Ylst

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presumption, the court must find that the California Supreme Court denied petitioner’s state

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habeas petition for failure to exhaust administrative remedies. If the court made such a finding

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then the court must also find that state court remedies are not exhausted based on the premise

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that state court remedies are still available to plaintiff if he exhausts administrative remedies.

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In this case, however, the court finds that petitioner has overcome the Ylst

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presumption. In order to exhaust administrative remedies with respect to the claims presented in

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this action, petitioner was required to submit his claims to the Office of the Director of the

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California Department of Corrections of Rehabilitation and obtain a decision regarding his

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claims from the Director. Cal. Code Regs. tit. 15, § 3084.5. The evidence before the court

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indicates that petitioner submitted his claims to the Director, the Director issued a decision with

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respect to the claims, and petitioner attached a copy of that decision to his California Supreme

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Court habeas petition. Dckt. No. 12 at 65. In light of this evidence, which respondent does not

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address or acknowledge, there should not be a presumption that the California Supreme Court

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Page numbers are those assigned by the court’s electronic docketing system.
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denied petitioner’s state habeas petition for failure to exhaust administrative remedies or for

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failing to demonstrate that he did.

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Because there is nothing before the court suggesting petitioner did not exhaust

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state court remedies with respect to the claims presented in this action, the court will recommend

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that respondent’s motion to dismiss be denied and respondent be directed to file his answer.

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In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the
Court assign a District Court Judge to this case.

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IT IS HEREBY RECOMMENDED that:

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1. Respondent’s May 29, 2012 motion to dismiss be denied; and

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2. Respondent be directed to file his answer within twenty-one days of adoption
of the foregoing findings and recommendations.

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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 twenty-

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one days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: July 13, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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