Collins v. Hainline

Filing 12

ORDER signed by Magistrate Judge Deborah Barnes on 9/20/2017 ORDERING petitioner to SHOW CAUSE why the petition should not be dismissed for petitioner's failure to exhaust state remedies and petitioner shall also inform the court what claims have been presented to the CA Supreme Court within 30 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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DANTE C. COLLINS,

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No. 2:17-cv-0692 DB P

Petitioner,
v.

ORDER

PATTI HAINLINE,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus

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under 28 U.S.C. § 2254. Petitioner challenges a September 2015 conviction from the Solano

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County Superior Court. Petitioner contends his custody credits were improperly calculated.

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Before the court is petitioner’s petition for screening. Petitioner has consented to the jurisdiction

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of a magistrate judge. (See ECF No. 11.)

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Rule 4 of the Rules Governing § 2254 Cases requires the court to make a preliminary

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review of each petition for writ of habeas corpus. The court must dismiss a petition "[i]f it plainly

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appears from the petition . . . that the petitioner is not entitled to relief." Rule 4, Rules Governing

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§ 2254 Cases; Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Otherwise, the Court will

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order respondent to respond to the petition. Rule 5, Rules Governing § 2254 Cases.

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A petitioner who is in state custody and wishes to collaterally challenge his conviction by

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a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1).
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The exhaustion doctrine is based on comity to the state court and gives the state court the initial

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opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501

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U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158,

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1163 (9th Cir. 1988).

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A petitioner can satisfy the exhaustion requirement by providing the highest state court

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with a full and fair opportunity to consider each claim before presenting it to the federal court.

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Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971);

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Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest

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state court was given a full and fair opportunity to hear a claim if the petitioner has presented the

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highest state court with the claim's factual and legal bases. Duncan, 513 U.S. at 365 (legal basis);

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Keeney v. Tamayo-Reyes, 504 U.S. 1, 9 (1992) (factual basis).

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Additionally, the petitioner must have specifically told the state court that he was raising a

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federal constitutional claim. Duncan, 513 U.S. at 365-66; Hiivala v. Wood, 195 F.3d 1098, 1106

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(9th Cir.1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). In Duncan, the United

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States Supreme Court reiterated the rule as follows:

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In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that
exhaustion of state remedies requires that petitioners "fairly
present" federal claims to the state courts in order to give the State
the "'opportunity to pass upon and correct’ alleged violations of the
prisoners' federal rights" (some internal quotation marks omitted).
If state courts are to be given the opportunity to correct alleged
violations of prisoners' federal rights, they must surely be alerted to
the fact that the prisoners are asserting claims under the United
States Constitution. If a habeas petitioner wishes to claim that an
evidentiary ruling at a state court trial denied him the due process of
law guaranteed by the Fourteenth Amendment, he must say so, not
only in federal court, but in state court.
513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating:

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Our rule is that a state prisoner has not "fairly presented" (and thus
exhausted) his federal claims in state court unless he specifically
indicated to that court that those claims were based on federal law.
See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000).
Since the Supreme Court's decision in Duncan, this court has held
that the petitioner must make the federal basis of the claim explicit
either by citing federal law or the decisions of federal courts, even
if the federal basis is “self-evident," Gatlin v. Madding, 189 F.3d
882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7 .
. . (1982), or the underlying claim would be decided under state law
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on the same considerations that would control resolution of the
claim on federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07
(9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir.
1996); . . . .

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In Johnson, we explained that the petitioner must alert the state
court to the fact that the relevant claim is a federal one without
regard to how similar the state and federal standards for reviewing
the claim may be or how obvious the violation of federal law is.

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Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), amended on other grounds, 247 F.3d

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904 (9th Cir. 2001).

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Upon review of the instant petition for writ of habeas corpus, it appears that petitioner has

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not presented his claims to the highest state court, the California Supreme Court. Petitioner must

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inform the court if, in fact, his claims have been presented to the California Supreme Court, and if

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possible, provide the court with a copy of the petition filed in the California Supreme Court along

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with a copy of any ruling made by the California Supreme Court. Without knowing what claims,

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if any, have been presented to the California Supreme Court, the court is unable to proceed to the

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merits of the petition. 28 U.S.C. § 2254(b)(1).

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Accordingly, petitioner is ORDERED TO SHOW CAUSE why the petition should not be

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dismissed for petitioner’s failure to exhaust state remedies. Petitioner is ORDERED to inform the

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court what claims have been presented to the California Supreme Court within thirty (30) days of

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the date of service of this order. Petitioner is forewarned that failure to follow this order will

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result in dismissal of the petition pursuant to Local Rule 110.

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DATED: September 20, 2017

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/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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DLB:9
DLB1/prisoner-habeas/coll0692.osc

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