Gill v. People of the State of California

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/8/14 ORDERING that petitioners application for a writ of habeas corpus is dismissed without prejudice for failure to exhaust state remedies and no certificate of appealability shall issue. The Clerk of the Court shall serve a copy of this order, together with a copy of the December 16, 2013 petition, on Michael Patrick Farrell, Senior Assistant Attorney General for the State of California. CASE CLOSED. (cc Michael Farrell)(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENDAL S. GILL,

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No. 2:13-cv-2598-EFB P

Petitioner,
v.

ORDER

PEOPLE OF THE STATE OF
CALIFORNIA,
Respondent.

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Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254.1 He challenges the four year sentence imposed by the

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Shasta County Superior Court following his convictions of assault, child abuse, criminal threats,

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attempted arson, false imprisonment, and resisting arrest. ECF No. 1 at 1. On February 5, 2014,

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the court reviewed the petition pursuant to Rule 4 of the Rules Governing § 2254 Cases and

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explained that petitioner had failed to exhaust the available state remedies for his claims. The

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court ordered petitioner to, within 30 days, either demonstrate good cause for this failure or obtain

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consent from the respondent to proceed despite his failure to exhaust.

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to petitioner’s consent. See 28 U.S.C. § 636;
see also E.D. Cal. Local Rules, Appx. A, at (k)(4).
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The time for acting has passed and petitioner has not complied with or otherwise

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responded to the court’s February 5, 2014 order. For the reasons explained below, and in the

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February 5 order, this action must be dismissed.

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A district court may not grant a petition for a writ of habeas corpus unless “the applicant

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has exhausted the remedies available in the courts of the State,” or unless there is no State

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corrective process or “circumstances exist that render such process ineffective to protect the rights

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of the applicant.” 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by

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presenting the “substance of his federal habeas corpus claim” to the state courts. Picard v.

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Connor, 404 U.S. 270, 278 (1971) (no exhaustion where the petitioner presented operative facts

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but not legal theory to state courts); see also Duncan v. Henry, 513 U.S. 364, 365 (1995) (to

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exhaust a claim, a state court “must surely be alerted to the fact that the prisoners are asserting

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claims under the United States Constitution”). For a California prisoner to exhaust, he must

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present his claims to the California Supreme Court on appeal in a petition for review or on post-

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conviction in a petition for a writ of habeas corpus. See Carey v. Saffold, 536 U.S. 223, 239-40

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(2002) (describing California’s habeas corpus procedure); Gatlin v. Madding, 189 F.3d 882, 888

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(9th Cir. 1999) (to exhaust, prisoner must present claims on appeal to California Supreme Court

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in a petition for review). Unless the respondent specifically consents to the court entertaining

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unexhausted claims, a petition containing such claims must be dismissed. See 28 U.S.C.

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§ 2254(b)(3); Picard, 404 U.S. at 275.

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There is no indication on the habeas form that petitioner challenged the Shasta County

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Superior Court convictions and sentence in the California Supreme Court. Petitioner alleges that

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he filed a direct appeal with the California Court of Appeal, Third Appellate District, which was

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denied on December 3, 2013.2 ECF No. 1 at 2. However, petitioner left his form habeas petition

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blank in response to the question therein as to whether he “sought further review of the decision

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on appeal by a higher state court.” Id. Thus, the petition suggests that petitioner did not seek

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Petitioner also alleges that he filed a habeas petition in the Shasta County Superior
Court, which was denied on March 13, 2013. ECF No. 2 at 2-3. He does not claim to have filed
any additional state court petitions for relief. See id.
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review of any of his claims in the California Supreme Court.3 Indeed, there is no indication on

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the California Supreme Court’s docket that petitioner has sought review of his judgment of

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conviction in that court.4 Petitioner does not allege that state court remedies are no longer

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available to him.

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Notwithstanding the court’s February 5, 2014 order, petitioner has not shown cause for his

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failure to exhaust. Nor has he obtained from the respondent an express waiver of the exhaustion

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requirement. Petitioner has therefore failed to exhaust state court remedies, as the California

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Supreme Court has not yet had the opportunity to resolve petitioner’s constitutional claims on

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their merits. See Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002). This action must

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therefore be dismissed.
Accordingly, it is ORDERED that petitioner’s application for a writ of habeas corpus is

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dismissed without prejudice for failure to exhaust state remedies and no certificate of

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appealability shall issue. The Clerk of the Court shall serve a copy of this order, together with a

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copy of the December 16, 2013 petition, on Michael Patrick Farrell, Senior Assistant Attorney

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General for the State of California.

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Dated: April 8, 2014.

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At a minimum, petitioner concedes that at least two of the claims were never presented
to the California Supreme Court. See ECF No. 1, § 13 (alleging that two of his claims “were not
previously presented in any other court because [his] appellate attorney didn’t think they had any
merit”).
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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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