Herrera v. Gipson

Filing 30

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/24/2014 RECOMMENDING that respondent's 22 motion to dismiss for failure to exhaust state court remedies or alternatively, because petitioner's claims are procedurally barred be granted; and this action be closed. Referred to Judge Troy L. Nunley; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA,

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Petitioner,

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No. 2:12-cv-2982 TLN DAD P

v.

FINDINGS AND RECOMMENDATIONS

CONNIE GIPSON, Warden,

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Respondent.

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

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pursuant to 28 U.S.C. § 2254. On April 11, 2014, counsel for respondent filed the pending

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motion to dismiss, arguing that the claims in petitioner’s habeas petition are unexhausted and

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procedurally defaulted. Petitioner has filed an opposition to the motion.
BACKGROUND

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Petitioner commenced this action by filing a petition for writ of habeas corpus challenging

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a 2009 Rules Violation Report (“RVR”) for possession of a weapon/sharp instrument and battery

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on staff. In his pending petition, petitioner claims that prison officials violated his due process

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rights in connection with the RVR, which subsequently led to him being charged with and

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convicted of related criminal charges in the Lassen County Superior Court.1 (Pet. at 2, 5 &

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Petitioner is challenging his Lassen County Superior Court conviction with the assistance of
counsel in a separate proceeding. See Herrera v. Gipson, No. 2:12-cv-0508 KJM DAD P.
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Attachs.)

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ANALYSIS
In the pending motion to dismiss, counsel for respondent argues that petitioner’s claims

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are unexhausted. Specifically, counsel contends that the California Supreme Court denied

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petitioner’s exhaustion petition while citing the decisions in People v. Duvall, 9 Cal. 4th 464, 474

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(1995) and In re Dexter, 25 Cal. 3d 921, 925 (1979). Counsel for respondent contends that

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citations to these decisions signify that petitioner was found to have failed to exhaust his

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administrative remedies prior to seeking judicial relief and that the California Supreme Court

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therefore did not reach the merits of his habeas claims and they are thus unexhausted.

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Alternatively, counsel contends that the California Supreme Court’s citation to the decisions in In

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re Dexter signifies that petitioner procedurally defaulted on his claims based on his failure to

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exhaust administrative remedies as required under state law. (Resp’t’s Mot. to Dismiss at 3-5 &

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Ex. 2.)

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For the reasons discussed below, the undersigned agrees with counsel for respondent and

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will recommend that the pending motion to dismiss the petition be granted.

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I. Exhaustion of State Court Remedies

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State courts must be given the first opportunity to consider and address a state prisoner’s

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habeas corpus claims. See Rhines v. Weber, 544 U.S. 269, 273-74 (2005) (citing Rose v. Lundy,

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455 U.S. 509, 518-19 (1982)); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) (“Habeas petitioners

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have long been required to adjudicate their claims in state court - that is, ‘exhaust’ them - before

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seeking relief in federal court.”); Farmer v. Baldwin, 497 F.3d 1050, 1053 (9th Cir. 2007) (“This

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so-called ‘exhaustion requirement’ is intended to afford ‘the state courts a meaningful opportunity

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to consider allegations of legal error’ before a federal habeas court may review a prisoner’s

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claims.”) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). Generally speaking, a federal

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court will not grant a state prisoner’s application for a writ of habeas corpus unless “the applicant

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has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1). The

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exhaustion requirement will not be deemed to have been waived unless the state, through counsel,

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expressly waives the requirement. 28 U.S.C. § 2254(b)(3).
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A petitioner satisfies the exhaustion requirement by fairly presenting to the highest state

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court all federal claims before presenting those claims for relief to the federal court. See Baldwin

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v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor,

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404 U.S. 270, 276 (1971); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008). A federal

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claim is fairly presented if the petitioner has described the operative facts and the federal legal

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theory upon which his claim is based. See Wooten, 540 F.3d at 1025 (“Fair presentation requires

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that a state’s highest court has ‘a fair opportunity to consider . . . and to correct [the] asserted

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constitutional defect.’”); Lounsbury v. Thompson, 374 F.3d 785, 787 (9th Cir. 2004) (same)

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(quoting Picard, 404 U.S. at 276)); Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003),

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overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1146 (9th Cir. 2007); Weaver v.

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Thompson, 197 F.3d 359, 364 (9th Cir. 1999); see also Bland v. California Dep’t of Corrs., 20

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F.3d 1469, 1473 (9th Cir. 1994).

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In this case, the California Supreme Court denied petitioner’s exhaustion petition with a

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citation to the In re Dexter, 25 Cal. 3d 921, 925 (1979) decision. In In re Dexter, the California

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Supreme Court held that the court will not afford a prisoner judicial relief unless he has first

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exhausted available administrative remedies. 25 Cal. 3d at 925. The California Supreme Court’s

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citation to In re Dexter here signifies that the court did not reach the merits of petitioner’s claims

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because he had failed to exhaust his available administrative remedies. See Harris v. Superior

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Court, 500 F.2d 1124, 1128 (9th Cir. 1974) (en banc) (“If the denial of the habeas corpus petition

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includes a citation of an authority which indicates that the petition was procedurally deficient or if

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the California Supreme Court so states explicitly, then the available state remedies have not been

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exhausted as the California Supreme Court has not been given the required fair opportunity to

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correct the constitutional violation.”).

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District courts in California have consistently held that if the California Supreme Court

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denies an exhaustion petition with a citation to In re Dexter, the prisoner has not exhausted state

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court remedies as required. See, e.g., Turner v. Director of CDC, No. 1:14-cv-00392 LJO JLT,

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2014 WL 4458885 at *3 n.2 (E.D. Cal. Sept. 10, 2014) (“[F]or exhaustion purposes, the citation

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to Dexter alone is sufficient, without the need to review the state petition, to establish that the
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claims in the first amended petition were never considered on their merits by the state court and,

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thus were not ‘fairly presented’ within the meaning of AEDPA.”); Dean v. Diaz, No. 1:14-cv-

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00209 SKO HC, 2014 WL 1275706 at *5 (E.D. Cal. Mar. 27, 2014) (“This court has regularly

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relied on a citation to Dexter to find that a federal petition is unexhausted.”); Riley v. Grounds,

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No. C-13-2524 TEH (PR), 2014 WL 988986 at *4 (N.D. Cal. Mar. 10, 2014) (granting motion to

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dismiss petition as unexhausted in light of California Supreme Court’s summary denial with a

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citation to In re Dexter); Yeh v. Hamilton, No. 1:13-cv-00335, 2013 WL 3773869 at *2 (E.D.

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Cal. July 17, 2013) (“In citing Robbins and Dexter, the California Supreme Court found the

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petition to be procedurally deficient; therefore the Court did not reach the merits of the petition

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but determined habeas relief was procedurally foreclosed. Therefore the petition is

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unexhausted.”); Foster v. Cate, No. 1:12-cv-01539 AWI BAM HC, 2013 WL 1499481 at *2

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(E.D. Cal. Apr. 11, 2013) (California Supreme Court’s citation to In re Dexter indicates that

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petitioner presented his claim in a procedurally deficient manner and therefore petitioner has

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failed to exhaust state court remedies); Franklin v. Gipson, No. CV 12-7411 R (PLA), 2013 WL

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1339545 at *3 (C.D. Cal. Feb. 19, 2013) (“the California Supreme Court’s dismissal based on

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Dexter renders Ground One unexhausted.”); Davis v. Swarthout, No. CIV-S-10-3224 KJM CKD

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P, 2012 WL 244211 (E.D. Cal. Jan. 25, 2012) (“This case presents no exception to the prevailing

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interpretation of the California Supreme Court’s Dexter dismissal); McCann v. Hill, No. CIV S-

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11-1463 LKK DAD P, 2011 WL 6750056 at *2 (E.D. Cal. Dec. 22, 2011) (“The California

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Supreme Court’s citation to In re Dexter here signifies that the court did not reach the merits of

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petitioner’s claims because he failed to exhaust his available administrative remedies.”); Johnson

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v. Harrington, No. 1:11-cv-00207-AWI-DLB (HC), 2011 WL 1807219 at *2 (E.D. Cal. May 11,

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2011) (“Petitioner failed to exhaust his claims because the California Supreme Court did not

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reach the merits of the claims, but instead [cited In re Dexter and] denied the habeas petition for

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failure to exhaust administrative remedies.”); Gaston v. Harrington, No. 1:09-CV-01025 OWW

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GAS HC, 2009 WL 3627931 at *2 (E.D. Cal. Oct. 29, 2009) (federal habeas petition is

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unexhausted because the California Supreme Court, citing In re Dexter, declined to review the

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petition on the merits because petitioner had not exhausted his administrative remedies).
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In light of the California Supreme Court’s citation to In re Dexter in its summary denial of

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petitioner’s exhaustion petition, the undersigned finds that petitioner has not fairly presented his

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claims to the state’s highest court and has not satisfied the exhaustion requirement. Accordingly,

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respondent’s motion to dismiss the pending petition due to petitioner’s failure to properly exhaust

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his habeas claims in state court should be granted.

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II. Procedural Default

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The court now turns to respondent’s contention that petitioner’s claims are also

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procedurally barred. The United States Supreme Court has reaffirmed that a federal court will not

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review a habeas claim rejected by a state court if that court’s decision rests on a state law ground

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that is both independent of the federal question and adequate to support the judgment. See

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Walker v. Martin, ___ U.S. ___, ___, 131 S. Ct. 1120, 1127 (2011) (quoting Beard v. Kindler,

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558 U.S. ___, ___, 130 S. Ct. 612, 615 (2009)). See also Coleman v. Thompson, 501 U.S. 722,

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729 (1991). “The state-law ground may be a substantive rule dispositive of the case, or a

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procedural barrier to the adjudication of the claim on the merits. Walker, 131 S. Ct. at 1127.

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California’s administrative exhaustion rule is based solely on state law and is therefore

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independent of federal law. See Carter v. Giurbino, 385 F.3d 1194, 1197-98 (9th Cir. 2004) (“A

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state ground is independent only if it is not interwoven with federal law.”); see also Cal. Code

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Regs. tit. 15, § 3084.1(a) (prisoners may appeal “any policy, decision, action, condition, or

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omission by the department or its staff that the inmate or parolee can demonstrate as having a

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material adverse effect upon his or her health, safety, or welfare.”). California’s administrative

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exhaustion rule has also been firmly established and has been regularly followed since 1941 and

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is therefore adequate to support a judgment. See .”); Abelleira v. District Court of Appeal, 17

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Cal. 2d 280, 292 (1941) (“the rule is that where an administrative remedy is provided by statute,

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relief must be sought from the administrative body and this remedy exhausted before the courts

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will act.”); In re Muszalski, 52 Cal. App. 3d 500, 503 (1975) (“It is well settled as a general

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proposition that a litigant will not be afforded relief in the courts unless and until he has

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exhausted available administrative remedies. “); see also Drake v. Adams, No. 2:07-cv-00577

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JKS, 2009 WL 2474826 at *2 (E.D. Cal. Aug. 11, 2009) (“In reviewing California cases in which
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the issue of exhaustion was decided during the past 10 years, the Court was unable to find a single

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case in which a California appellate court did not deny a petition for failure to exhaust

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administrative remedies. Thus, this doctrine appears to be well established and consistently

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applied.”).

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District courts in California have likewise consistently held that if the California Supreme

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Court denies an exhaustion petition with a citation to In re Dexter federal habeas review is

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procedurally barred because California’s administrative exhaustion rule is both independent of

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federal law and adequate to support the state court judgment. See, e.g., Turner, 2013 WL

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4458885 at *6 (petitioner’s remaining claims procedurally barred pursuant to California Supreme

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Court’s citation to In re Dexter); Riley, 2014 WL 988986 at *4 (granting motion to dismiss

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petition as procedurally barred in light of California Supreme Court summary denial with a

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citation to In re Dexter); Yeh, 2013 WL 3773869 at *2-*3 (petitioner’s claims procedurally

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barred after California Supreme Court denied state petition with citation to In re Dexter); Foster,

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2013 WL 1499481 at *3-*4 (California Supreme Court’s citation to In re Dexter is both

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independent and adequate and therefore respondent is correct that federal habeas review is

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procedurally barred); Chatman v. McDonald, No. 2:08-cv-2054 KJM EFB P, 2012 WL 6020030

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at *2 (E.D. Cal. Dec. 3, 2012) (“Because [exhaustion of administrative remedies] is an adequate

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an independent state law ground for denying him relief, this court may not reach the merits of

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petitioner’s claims….”); Garner v. Yates, No. 1:11-cv-02051 LJO GSA HC, 2012 WL 1192847 at

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*4-*5 (E.D. Cal. Apr. 10, 2012) (federal habeas review is barred because California Supreme

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Court denied his petition with citation to In re Dexter, which is an independent and adequate state

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procedural ground); McCann, 2011 WL 6750056 at *2 (claims procedurally barred because In re

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Dexter administrative exhaustion rule is both independent and adequate); Gaston v. Hedgepeth,

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No. C 10-4068, 2011 WL 5445651 at *2 (N.D. Cal. Nov. 9, 2011) (“The California Supreme

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Court’s citation to Dexter is thus independent and adequate to bar Petitioner’s claim from federal

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habeas review.”); Edwards v. Small, Civil No. 10CV918-JM(JMA), 2011 WL 976606 at *8-9

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(S.D. Cal. Feb. 18, 2011) (finding all claims presented in the petition procedurally barred because

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failure to exhaust administrative remedies is an independent and adequate state procedural rule);
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Hoover v. Swarthout, No. 2:10-cv-1447 WBS KJN, 2011 WL 1363813 at *7 (E.D. Cal. Apr. 11,

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2011) (“The order by the California Supreme Court [citing In re Dexter] indicated that its

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decision rested on a state procedural bar.”); Wilson v. Evans, No. 2:07-cv-01808-ATG (HC),

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2009 WL 2407692 at *3 (E.D. Cal. Aug. 4, 2009) (by presenting his state habeas petition to the

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California Supreme Court before he exhausted his available prison administrative remedies, he

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“essentially foreclosed any consideration of the merits of the petition”); Patterson v. Mendoza-

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Powers, No. 1:07-cv-00686-OWW-TAG HC, 2009 WL 277502 at *2 (E.D. Cal. Feb. 5, 2009)

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(rule in In re Dexter is an independent and adequate state ground that bars the court from reaching

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the merits of petitioner’s federal habeas claims).

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Here, in light of the California Supreme Court’s citation to In re Dexter in its summary

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denial of petitioner’s exhaustion petition, the undersigned finds that petitioner’s claims are also

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procedurally barred. See Carter, 385 F.3d at 1197 (one-sentence summary denial of petition

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incorporating unelaborated case citation sufficient for procedural default); Bennett v. Mueller,

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322 F.3d 573, 580 (9th Cir. 2003) (procedural bar still applies even if the state court based its

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denial on alternative grounds as long as at least one of them was an adequate and independent

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procedural ground). Petitioner has not alleged any facts to cast doubt on the adequacy or

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consistent application of California’s administrative exhaustion rule. See Bennett, 322 F.3d at

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586. Nor has petitioner asserted that the California Supreme Court’s administrative exhaustion

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rule “discriminates against claims of federal rights.” See Walker, 131 S. Ct. at 1130. Finally,

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although petitioner can overcome a procedural default by demonstrating cause for the default and

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actual prejudice, he has advanced no such arguments here. See Bennett, 322 F.3d at 580. Finally,

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petitioner has not demonstrated that this court’s failure to consider his claims for federal habeas

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relief will result in a fundamental miscarriage of justice. See id. Accordingly, respondent’s

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motion to dismiss on the grounds that petitioner’s claims for relief are procedurally barred should

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be granted.

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CONCLUSION

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Respondent’s motion to dismiss for failure to exhaust state court remedies or

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alternatively, because petitioner’s claims are procedurally barred (Doc. No. 22) be granted; and

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2. This action be closed.

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These findings and recommendations are 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)(l). Within fourteen days

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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 response to the

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

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

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the District Court’s order. Martinez v. Ylst, 951 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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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: October 24, 2014

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DAD:9
herr2982.157

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