Cornish v. MacDonald

Filing 7

ORDER signed by Magistrate Judge Kendall J. Newman on 6/25/12 ORDERING that Petitioner's MOTION to proceed in forma pauperis 5 is GRANTED; Petitioner shall, within thirty days after the filing date of this order, file in this Court a copy of the California Supreme Court's subject denial of review. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AMMIEL CORNISH,
Petitioner,

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No. 2:12-cv-1296 KJN P

vs.
JIM MACDONALD,
Respondent.

ORDER
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Petitioner, a state prisoner proceeding without counsel, has filed an amended

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a 2008 conviction,

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together with an application to proceed in forma pauperis.

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Examination of the in forma pauperis application reveals that petitioner is unable

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to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be

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granted. See 28 U.S.C. § 1915(a).

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The court dismissed petitioner’s initial petition due to inconsistencies in the dates

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contained therein, and failure of petitioner to demonstrate exhaustion of his state court remedies.

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(See Dkt. No. 3.) A similar problem besets the amended petition. While it is clear that petitioner

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challenged his conviction on direct appeal to the California Court of Appeal, see People v.

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Cornish (Aug. 11, 2010) 2010 WL 3158609, it is not clear that petitioner complied with the
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requirement that he provide the state’s highest court, the California Supreme Court, with the

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opportunity to consider his claims. Under 28 U.S.C. § 2254(b)(1), an application for a writ of

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habeas corpus “shall not be granted” unless “the applicant has exhausted the remedies available

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in the courts of the State[.]” A petitioner satisfies the exhaustion requirement by providing the

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state’s highest court with a fair opportunity to consider each claim before presenting it to the

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federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Weaver v. Thompson, 197 F.3d 359,

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364 (9th Cir. 1999). “[S]tate prisoners must give the state courts one full opportunity to resolve

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any constitutional issues by invoking one complete round of the State’s established appellate

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review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999).
In his initial petition, petitioner averred, without providing dates, that after the

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state Court of Appeal affirmed his conviction, he filed a petition for writ of certiorari in the

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United States Supreme Court; petitioner identified the same case number as his Court of Appeal

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action, and stated that his conviction was again “affirmed.” (See Dkt. No. 1 at 3.) In his current

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amended petition, in response to a query whether petitioner sought further review by a higher

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state court, petitioner avers that, after the Court of Appeal ruling, he sought review in the

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“Supreme Court,” which “denied” such review; petitioner makes no reference to a case number

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or date.1 (Moreover, petitioner expressly states that he filed no state court petitions for writ of

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habeas corpus.)
This court has a duty to screen habeas corpus petitions. See Rules Governing §

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2254 Cases in the United States District Courts, Rule 4 Advisory Committee Notes. Rule 4

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requires a district court to examine a habeas corpus petition, and “[i]f it plainly appears from the

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face of the petition and any attached exhibits that the petitioner is not entitled to relief in the

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district court, the judge must dismiss the petition . . . .” Id.
Given the patent ambiguity in the amended petition concerning petitioner’s

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“A petition for review must be served and filed within 10 days after the Court of Appeal
decision is final in that court.” Rule 8.500(e)(1), California Rules of Court.
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exhaustion of his state court remedies, the court will require petitioner to file a copy of the

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California Supreme Court’s denial of review before directing service on respondent. Petitioner

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will be given sufficient time to obtain a copy of the California Supreme Court’s order; petitioner

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may include a copy of the instant order in submitting his request to the California Supreme

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Court.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion to proceed in forma pauperis is granted; and

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2. Petitioner shall, within thirty days after the filing date of this order, file in this

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court a copy of the California Supreme Court’s subject denial of review.2
DATED: June 25, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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corn1296.fb.

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Petitioner should also submit, if available, a copy of the petition for review he submitted
to the California Supreme Court.
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