Greene v. Pelican Bay State Prison
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 7/12/2015 RECOMMENDING that respondent's 10 motion to dismiss be granted and petitioner's application for writ of habeas corpus be dismissed; respondent't request to dismiss the petition with prejudice be denied; and the court decline to issue the certificate of appealability referenced in 28 U.S.C. § 2253. Referred to Judge John A. Mendez; Objections due within 21 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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MARCELLUS ALEXANDER GREENE,
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Petitioner,
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No. 2:14-cv-1826 JAM AC P
v.
FINDINGS AND RECOMMENDATIONS
PELICAN BAY STATE PRISON,
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Respondents.
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Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed an
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application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is
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respondent’s motion to dismiss the petition as unexhausted and untimely. ECF No. 10. Petitioner
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has responded (ECF No. 13) and no reply has been filed.
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I.
Factual and Procedural Background
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Petitioner pled no contest to a charge of possession of a sharp object or weapon by an
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inmate and on September 17, 2002, was sentenced to a determinate state prison term of eight
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years. ECF No. 1 at 1; Lodged Doc. No. 1.
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The petition indicates that petitioner initiated both a direct appeal and a state petition for
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writ of habeas corpus, but did not seek review of either in the California Supreme Court. ECF
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No. 1 at 2-3. Respondent notes that petitioner has an additional forty state collateral filings, but
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does not elaborate beyond stating that “they do not impact the statute of limitations analysis”
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because they “were filed either too early, a year or more too late or do not challenge the relevant
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conviction.” ECF No. 10 at 2. A search of petitioner’s underlying criminal case, Case No.
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00F01538, on the Sacramento County Superior Court’s online public access site reveals forty-two
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related cases filed between June 5, 2000, and March 23, 2015.1 The information for forty of the
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cases clearly indicates they were petitions for writ of habeas corpus. The other two cases are
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simply identified as writs. No information regarding the substance of the petitions is discernable
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from the website.
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A review of the California Supreme Court’s online docketing system indicates that
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petitioner has not filed any claims in that court under either the name Marcellus Greene or
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Marvellous Warrior, the names he uses to identify himself in this case. However, the docket in
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petitioner’s underlying criminal case, Case No. 00F01538, on the Sacramento County Superior
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Court’s online public access site, reveals a number of aliases used by petitioner, most being some
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variation of the two names used in this case. A search of these aliases on the California Supreme
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Court’s online docketing system reveals a single case, Case No. S171348, filed by petitioner
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under the name Marvellous Asha Xyah.2 According to the docket in that case, petitioner filed a
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petition for writ of mandate/prohibition on March 18, 2009, that was transferred to the California
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Court of Appeal, Third Appellate District on April 1, 2009.3
The instant petition was filed on July 17, 2014.4
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II.
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Motion to Dismiss
Respondent argues that the petition should be dismissed because petitioner has failed to
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This court may take judicial notice of the records of other courts. See United States v. Howard,
381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631 F.2d 118, 119 (9th Cir.
1980); see also Fed. R. Evid. 201 (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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The party information on the California Supreme Court’s website also identifies petitioner by
his CDCR number, K-29392. See
http://appellatecases.courtinfo.ca.gov/search/case/partiesAndAttorneys.cfm?dist=0&doc_id=1903
026&doc_no=S171348
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Docket for Case No. S171348 available at:
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1903026&doc_no
=S171348
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The prison mailbox rule was used in determining the filing date of petitioner’s federal habeas
petition. See Houston v. Lack, 487 U.S. 266 (1988).
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exhaust his state court remedies by presenting his claims to the California Supreme Court, and
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because the petition is untimely. ECF No. 10 at 4-5. Respondent further argues that dismissal
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should be with prejudice because the statute of limitations bars further proceedings. Id.
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III.
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Opposition to Motion to Dismiss
Petitioner does not deny that he has not exhausted his state court remedies and instead
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states that he has “been on the wrong medication” and “was deaf, dumb and blind, to [his]
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objective nature” but he offers no further explanation. ECF No. 13 at 3. Petitioner further
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requests that if he has filed his petition in the wrong court that the court “[r]emand to where
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venue is proper.” ECF No. 13 at 3.
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IV.
Discussion
Habeas petitioners are required to exhaust state remedies before seeking relief in federal
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court unless “there is an absence of available State corrective process; or circumstances exist that
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render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b). The
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exhaustion doctrine ensures that state courts will have a meaningful opportunity to consider
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allegations of constitutional violations without interference from the federal judiciary. Rose v.
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Lundy, 455 U.S. 509, 515 (1982). A petitioner satisfies the exhaustion requirement by fairly
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presenting to the highest state court all federal claims before presenting them to the federal court.
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See Baldwin v. Reese, 541 U.S. 27, 29 (2004). A federal claim is fairly presented if the petitioner
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has described the operative facts and the federal legal theory upon which his claim is based. See
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Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008), cert. denied, 556 U.S. 1285 (2009).
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To the extent petitioner may be attempting to argue that he was excused from exhausting
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his state court remedies, his vague claims that he was “on the wrong medication” and “deaf,
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dumb and blind to [his] objective nature” are insufficient to establish that the state corrective
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process was unavailable or ineffective to protect his rights. See Blake v. Baker, 745 F.3d 977,
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982 (9th Cir. 2014) (explaining that “[w]hile a bald assertion cannot amount to a showing of good
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cause, a reasonable excuse, supported by evidence to justify a petitioner’s failure to exhaust,
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will.”) Petitioner offers no explanation why he did not pursue his direct appeal, or any of his
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numerous collateral appeals, to the California Supreme Court.
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Petitioner presents no claim or evidence that he has exhausted his state court remedies,
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and the California Supreme Court’s docketing system indicates that petitioner has submitted only
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a petition for writ of mandate or prohibition, which does not appear to have been properly filed
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with that court because it was transferred to the California Court of Appeal, Third Appellate
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District for disposition. The court can find no evidence that plaintiff filed either a direct appeal or
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a petition for writ of habeas corpus with the California Supreme Court.
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With respect to petitioner’s request that the petition be remanded, the petition originated
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in this court and there is nowhere for the court to remand it to. If petitioner seeks to pursue his
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claims in state court, he must file a petition in the appropriate state court.
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Because petitioner did not exhaust his state court remedies, the court need not address
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whether the petition is timely. However, even if the court sought to determine whether the
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petition was timely, it would be unable to do so because respondent has provided insufficient
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documentation to allow for an analysis of the timeliness of the petition. Respondent states that
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petitioner has filed forty state collateral filings, but has not provided any information on them
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beyond the general statement that they “were filed either too early, a year or more too late or do
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not challenge the relevant conviction.” ECF No. 10 at 2. Without information as to the substance
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of the filings and the grounds on which the state court dismissed them, this court is unable to
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determine which, if any, of the state collateral actions may toll the statute of limitations. Because
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the court is unable to evaluate the timeliness of the petition, respondent’s request that the petition
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be dismissed with prejudice will be denied.
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Accordingly, IT IS HEREBY RECOMMENDED that:
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1. Respondent’s motion to dismiss (ECF No. 10) be granted and petitioner’s application
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for a writ of habeas corpus be dismissed.
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2. Respondent’s request to dismiss the petition with prejudice be denied.
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3. The court decline to issue the certificate of appealability referenced in 28 U.S.C. §
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2253.
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These findings and recommendations will be submitted to the United States District Judge
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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one 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 Findings and Recommendations.” Any response to the objections shall be filed
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and served within fourteen days after service of the objections. The parties are advised that
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failure to file objections within the specified time may waive the right to appeal the District
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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: July 12, 2015
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