Pereira v. Swarthout

Filing 38

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 2/23/2017 RECOMMENDING respondent's 34 motion to dismiss be granted in part and Grounds 1-3 and 5-8 in petitioner's 24 first amended petition for writ of hab eas corpus be dismissed as unexhausted; the case proceed on Ground 4 of the first amended petition; respondent be directed to file an answer to Ground 4 of petitioner's habeas petition within 60 days; and petitoner's reply, if any, filed and served within 30 days after service of the answer. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 10 days. Due to exigencies in the court's calendar, no extensions of time will be granted.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONALD JOSEPH PEREIRA,

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Petitioner,

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No. 2:14-cv-00530-KJM-AC P

v.

FINDINGS & RECOMMENDATIONS

GARY SWARTHOUT,

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Respondent.

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Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a first

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amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 24.

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Pending before the court is respondent’s motion to dismiss on the grounds that petitioner has not

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exhausted all of the claims as required by 28 U.S.C. § 2254(b)(1)(A). ECF No. 34. Petitioner has

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filed an opposition to the motion to dismiss stating that all claims have been exhausted. ECF No.

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36.

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I.

Factual and Procedural Background
A jury convicted petitioner of robbery, attempted carjacking, being a felon in possession

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of a firearm, and resisting an officer. ECF No. 24 at 1; Lod. Doc. 1 at 1. He was sentenced to six

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years and six months in state prison. Id.

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A. Direct Review

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Petitioner, with the assistance of counsel, appealed to the California Court of Appeal,
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Third Appellate District. ECF No. 24 at 2. The Court of Appeal affirmed the judgment on July

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23, 2013. Id.; Lod. Doc. 1 at 8. Petitioner sought review in the California Supreme Court on the

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ground that his due process rights were violated when the trial court failed to instruct the jury on

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when the specific intent to take property had to be formed. Lod. Doc. 2 at 13-26.

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As part of his petition for review, petitioner also joined in any claims raised by his co-

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defendant, Felicia Vasquez, in her petition for review in accordance with California Rule of Court

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8.504(e)(3). Lod. Doc. 2 at 27. However, a review of the docketing system for the California

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Court of Appeal1 shows no petition for review to the California Supreme Court in his co-

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defendant’s case.2 A search of the California Supreme Court’s online docketing system also

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returns no results for Felicia Vasquez.

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The petition was denied September 25, 2013. Lod. Doc. 3.

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B. State Collateral Review

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Petitioner did not initially file an application for post-conviction or other collateral review

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in state court before filing the original petition in this case. ECF No. 1 at 3. On June 5, 2014, this

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court granted petitioner a stay to exhaust his claims in state court. ECF No. 15. In his first

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amended petition, petitioner indicated that he filed a state habeas petition in the Sacramento

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County Superior Court and the Supreme Court of California around June or July 2014. ECF No.

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24 at 2-3; ECF No. 36. A review of the Sacramento Superior Court’s online docketing system

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reveals a habeas petition assigned case number 14HC00322, which was filed by the court on May

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27, 2014, and denied on July 9, 2014.3 A review of the docketing system for the California Court

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The court “may take notice of proceedings in other courts, both within and without the federal
judicial system, if those proceedings have a direct relation to matters at issue.” United States ex
rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992)
(citation and internal quotation marks omitted) (collecting cases); Fed. R. Evid. 201(b)(2) (court
may take judicial notice of facts that are capable of accurate determination by sources whose
accuracy cannot reasonably be questioned).
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Docket for case number C071762 available at:
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=3&doc_id=2022194&doc_no
=C071762.
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Docket for case number 14HC00322 available at:
https://services.saccourt.ca.gov/PublicCaseAccess/Criminal/CaseDetails?sourceSystemId=8&sou
rceKey=1459808.
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of Appeal shows two habeas petitions, filed by petitioner in the Third Appellate District. The

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petition in case number C075884 was filed by the court on February 28, 2014, and denied on

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March 6, 2014.4 The petition in case number C076393 was filed by the court on May 5, 2014,

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and denied on May 8, 2014.5 A review of the California Supreme Court’s online docketing

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system indicates that petitioner has not filed anything in that court other than his direct appeal.

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C. Federal Petition

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On February 24, 2014, the Clerk of Court filed petitioner’s petition for writ of habeas

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corpus in this court. ECF No. 1. This court granted a stay of Ground 4, the sole exhausted claim,

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pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) and King v. Ryan, 564 F.3d 1133 (9th

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Cir. 2009). ECF No. 15. The remaining eight claims were stricken and petitioner was instructed

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to file an amended petition once he exhausted his claims. Id. On October 9, 2015, the Clerk of

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Court filed petitioner’s motion to proceed on his federal habeas petition (ECF No. 19) and this

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court subsequently lifted the stay (ECF No. 20). Petitioner proceeded to file a first amended

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petition that alleges eight grounds for relief, including (1) denial of due process based on a failure

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to preserve exculpatory evidence, (2) perjured testimony, (3) insufficient evidence to support a

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conviction for robbery, (4) erroneous jury instruction, (5) denial of a fair jury deliberation due to

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the jury’s confusion over the necessary elements for robbery, (6) admission of inadmissible

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evidence, (7) newly discovered evidence, and (8) prosecutorial misconduct. ECF No. 24.

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II.

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Motion to Dismiss
Respondent moves to dismiss the instant petition because it contains unexhausted claims.

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ECF No. 34. Respondent argues that Grounds 1-3 and 5-8 have not been exhausted in the state

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courts and therefore the petition should be dismissed. Id. at 3.

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III.

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Opposition
In response to respondent’s motion, petitioner argues that all of his claims have been

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Docket for case number C075884 available at:
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=3&doc_id=2070305&doc_no
=C075884.
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Docket for case number C076393 available at:
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=3&doc_id=2076140&doc_no
=C076393.
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exhausted because they were raised with the California Supreme Court after he was granted a

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Kelly stay in this case. ECF No. 36. Thus, petitioner requests the court consider the merits of all

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eight grounds in his first amended petition. Id.

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IV.

Discussion
Habeas petitioners are required to exhaust state remedies before seeking relief in federal

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court. 28 U.S.C. § 2254(b). The exhaustion doctrine ensures that state courts will have a

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meaningful opportunity to consider allegations of constitutional violations without interference

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from the federal judiciary. Rose v. Lundy, 455 U.S. 509, 515 (1982). A petitioner satisfies the

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exhaustion requirement by fairly presenting all federal claims to the highest state court before

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presenting them to the federal court. Baldwin v. Reese, 541 U.S. 27, 29 (2004).
Petitioner states that he has exhausted all of his claims because he filed a state petition for

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writ of habeas corpus with the Sacramento County Superior Court and the California Supreme

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Court. ECF No. 24 at 2-3; ECF No. 36. However, there is no record of petitioner filing a habeas

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petition with the California Supreme Court. Petitioner has not provided a case number or any

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documentary evidence, such as an order from the California Supreme Court, to support his claim

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that he filed a petition and that it was denied. Additionally, this court has been unable to verify

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through the California Supreme Court’s online docketing system that any such petition was filed.

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A habeas petitioner bears the burden of proving he has exhausted his state court remedies and

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petitioner has not met his burden. Cartright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981); Fisher

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v. Ventura Cnty. Sheriffs Narcotics Agency, No. CV 14-04494-VBF-MAN, 2014 WL 2772705,

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at *3, 2014 U.S. Dist. LEXIS 84331, at *9 (C.D. Cal. June 18, 2014) (noting “a petitioner who

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seeks to challenge the lawfulness of his state-court conviction or sentence under AEDPA bears

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the burden of affirmatively demonstrating that he has exhausted his state-court remedies”); King

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v. Cate, No. 1:10-CV-01546 GSA HC, 2010 WL 4898726, at *1, 2010 U.S. Dist. LEXIS 128600,

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at *2-4 (E.D. Cal. Nov. 23, 2010) (finding that petitioner’s assertion that he had presented his

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claims “at all levels of the California courts” was insufficient to meet his burden of proving

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exhaustion where the California Supreme Court had no record of a petition being filed by

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petitioner after the proceedings being challenged in his federal petition).
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Even if the court were to assume that Grounds 1-3 and 5-8 were presented to the

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California Court of Appeal, Third Appellate District through petitioner’s co-defendant’s direct

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appeal,6 or through his own petitions in that court, they have not been presented to the California

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Supreme Court. Since the claims in his co-defendant’s appeal were not presented in a petition for

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review, they were not properly incorporated under California Rule of Court 8.504(e)(3)7 and

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petitioner’s own petitions to the Court of Appeal are insufficient to exhaust any claims contained

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therein. Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (holding that California requires

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presentation of claim to California Supreme Court in order to exhaust state remedies). Therefore

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Grounds 1-3 and 5-8 remain unexhausted. The only claim in petitioner’s first amended complaint

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that was presented to the California Supreme Court is Ground 4, which was raised on direct

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review. Lod. Doc. 2 at 13.

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It should be noted that part of petitioner’s claim in Ground 5 overlaps with his claim in

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Ground 4 and is therefore duplicative. In Ground 4, petitioner alleges that the jury was not given

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proper instructions regarding the elements of robbery because they were not instructed that intent

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must be formed before or during the use of force or fear to commit the robbery. ECF No. 24 at 5.

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In Ground 5, petitioner alleges that he was denied a fair deliberation, due in part to the erroneous

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jury instruction on the elements of robbery (alleged in Ground 4), which he claims caused the jury

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to be confused about whether all of the elements had to be met to find petitioner guilty of robbery.

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ECF No. 24 at 7; ECF No. 24-1 at 122-123. To the extent that the jury’s confusion was based on

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the allegedly erroneous jury instruction and deprived petitioner of due process, it is duplicative of

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Ground 4 and should also be dismissed for that reason.

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V.

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Conclusion
Respondent’s motion to dismiss should be granted in part and Grounds 1-3 and 5-8 should

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Respondent has provided a copy of the appellate court’s opinion (Lod. Doc. 5) as evidence of
the co-defendant’s arguments, but the court cannot make a factual determination as to what
claims the petition made without seeing the petition itself.
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Rule 8.504(e)(3) provides that “[n]o incorporation by reference is permitted except a reference
to a petition, an answer, or a reply filed by another party in the same case or filed in a case that
raises the same or similar issues and in which a petition for review is pending or has been
granted.”
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be dismissed because petitioner did not present those claims to the California Supreme Court.

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Because the claims were not presented to the California Supreme Court, petitioner has not

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exhausted his state court remedies as to those claims. This case should proceed on the merits

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regarding Ground 4.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Respondent’s motion to dismiss be granted in part and Grounds 1-3 and 5-8 in

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petitioner’s first amended petition for writ of habeas corpus be dismissed as unexhausted.

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2. The case proceed on Ground 4 of the first amended petition.

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3. Respondent be directed to file an answer to Ground 4 of petitioner’s habeas petition

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within sixty days from the date of this order. See Rule 4, 28 U.S.C. foll. § 2254. An answer shall

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be accompanied by all transcripts and other documents relevant to the issues presented in the

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petition. See Rule 5, 28 U.S.C. foll. § 2254

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4. Petitioner’s reply, if any, be filed and served within thirty days after service of the
answer.

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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 ten days after

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being served with these findings and recommendations, any party may file written objections with

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the court and serve a copy on all parties. Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be

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filed and served within seven days after service of the objections. Due to exigencies in the

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court’s calendar, no extensions of time will be granted.8 The parties are advised that failure to

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file objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: February 23, 2017

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Petitioner is informed that in order to obtain the district judge’s independent review and
preserve issues for appeal, he need only identify the findings and recommendations to which he
objects. There is no need to reproduce his arguments on the issues.
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