Gibbs v. Attorney General of California

Filing 18

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 5/23/2017 RECOMMENDING that the amended petition be dismissed as premature. Referred to Judge John A. Mendez. Within 14 days after being served with these findings and recommendations, petitioner may file written objections with the court. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT ALAN GIBBS, 12 Petitioner, 13 14 15 No. 2:16-cv-1629 JAM DB v. FINDINGS AND RECOMMENDATIONS ATTORNEY GENERAL OF CALIFORNIA, Respondent. 16 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus 17 18 under 28 U.S.C. § 2254. Before the court is petitioner’s amended petition. (ECF No. 10.) For 19 the reasons set for the below, this court respectfully recommends that the amended petition be 20 dismissed as premature. 21 BACKGROUND 22 Petitioner initiated this action in 2016 by filing a petition for a writ of habeas corpus 23 pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner then moved to amend the petition four 24 times. (ECF Nos. 7; 8; 9; 10.) The court denied all of the motions to amend as moot and deemed 25 petitioner’s August 8, 2016 petition (ECF No. 10) as the operative petition in this case. (ECF No. 26 14.) 27 28 In the amended petition, petitioner complains of an “illegal prosecution” related to charges against him for making criminal threats. (ECF No. 10 at 2.) Petitioner was arrested on 1 1 September 11, 2015 and is presently in custody awaiting trial -- or, at least as of the latest version 2 of the petition, petitioner was still waiting to be tried). (Id.) 3 4 I. Legal Standards The court is required to screen all actions brought by prisoners who seek any form of 5 relief, including habeas relief, from a governmental entity or officer or employee of a 6 governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a habeas petition or portion 7 thereof if the prisoner raises claims that are legally “frivolous or malicious” or fail to state a basis 8 on which habeas relief may be granted. 28 U.S.C. § 1915A(b)(1),(2). This means the court must 9 dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that 10 the petitioner is not entitled to relief[.]” Rule 4 Governing Section 2254 Cases. 11 Rule 11 of the Rules Governing Section 2254 Cases provides that “[t]he Federal Rules of 12 Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these 13 rules, may be applied to a proceeding under these rules.” Drawing on the Federal Rules of Civil 14 Procedure, when considering whether a petition presents a claim upon which habeas relief can be 15 granted, the court must accept the allegations of the petition as true, Erickson v. Pardus, 551 U.S. 16 89, 94 (2007), and construe the petition in the light most favorable to the petitioner, see Scheuer 17 v. Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than 18 those drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), but “[i]t is well-settled that 19 ‘[c]onclusory allegations which are not supported by a statement of specific facts do not warrant 20 habeas relief.’” Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24 21 F.3d 20, 26 (9th Cir. 1994)). See also Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002) (“Pro 22 se habeas petitioners may not be held to the same technical standards as litigants represented by 23 counsel.”); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“[T]he petitioner is not entitled 24 to the benefit of every conceivable doubt; the court is obligated to draw only reasonable factual 25 inferences in the petitioner's favor.”) 26 Rule 2(c) of the Rules Governing § 2254 Cases requires every habeas petition to (1) 27 specify all the grounds for relief available to the petitioner; (2) state the facts supporting each 28 ground; and (3) state the relief requested. Although, as stated above, pro se petitions receive less 2 1 scrutiny for precision than those drafted by lawyers, a petitioner must give fair notice of his 2 claims by stating the factual and legal elements of each claim in a short, plain, and succinct 3 manner. See Mayle v. Felix, 545 U.S. 644, 648 (2005) (“In ordinary civil proceedings ... Rule 8 4 of the Federal Rules of Civil Procedure requires only 'a short and plain statement[.] ... Rule 2(c) 5 of the Rules Governing Habeas Corpus Cases requires a more detailed statement.”) Allegations 6 in a petition that are vague, conclusory, or palpably incredible, and that are unsupported by a 7 statement of specific facts, are insufficient to warrant relief and are subject to summary dismissal. 8 Jones v. Gomez, 66 F.3d 199, 204–05 (9th Cir.1995); James v. Borg, 24 F.3d 20, 26 (9th 9 Cir.1994). 10 II. Discussion 11 A petition for a writ of habeas corpus is not a substitute for pursuing state judicial 12 remedies. See 28 U.S.C. § 2254(b). Therefore, a petition for writ of habeas corpus should not be 13 entertained unless the petitioner has first exhausted his state remedies. Baldwin v. Reese, 541 14 U.S. 27, 29 (2004); Castille v. Peoples, 489 U.S. 346, 349 (1989). Concerns of comity dictate 15 that the State must first be afforded a full and fair opportunity to pass upon and correct the alleged 16 violation of its prisoners’ federal rights. See Duncan v. Henry, 513 U.S. 364, 365 (1995). The 17 exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas 18 corpus. 28 U.S.C. § 2254(b)(1). 19 Petitioner has not been tried or convicted of any crimes at this stage, so, therefore, his 20 petition for writ of habeas corpus is premature. A petitioner satisfies the exhaustion requirement 21 by providing the highest state court with a full and fair opportunity to consider all claims before 22 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 23 Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986). In order for this court to address the petitioner’s 24 habeas claims, he must first be convicted and sentenced by the state trial court. Thereafter, 25 petitioner must pursue his claims in the state courts of appeal until the claims have been 26 exhausted before the California Supreme Court. 27 //// 28 //// 3 1 Accordingly, petitioner is not entitled to habeas relief and his petition must be dismissed. 2 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the amended petition be 3 dismissed as premature. 4 These findings and recommendations will be submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 6 after being served with these findings and recommendations, petitioner may file written 7 objections with the court. The document should be captioned “Objections to Magistrate Judge's 8 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 9 specified time may result in waiver of the right to appeal the district court’s order. Martinez v. 10 Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate 11 of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 12 11, Rules Governing § 2254 Cases (the district court must issue or deny a certificate of 13 appealability when it enters a final order adverse to the applicant). 14 Dated: May 23, 2017 15 16 17 18 19 20 21 22 23 24 TIM-DLB:10 DB / ORDERS / ORDERS.PRISONER.HABEAS / gibb.1629.scrn2 25 26 27 28 4

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