Ottinger v. Hartley

Filing 12

ORDER REOPENING CASE; DISMISSING PETITION WITH LEAVE TO AMEND; INSTRUCTIONS TO CLERK. Signed by Judge 6/13/11 on 6/13/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 6/13/2011)

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*E-Filed 6/13/11*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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D. OTTINGER,
Petitioner,

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No. C 11-1813 RS (PR)
ORDER REOPENING ACTION;

v.

DISMISSING PETITION WITH
LEAVE TO AMEND

JAMES D. HARTLEY,
INSTRUCTIONS TO CLERK
Respondent.
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INTRODUCTION
This is a federal habeas corpus action filed pursuant to 28 U.S.C. § 2254 by a pro se

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state prisoner. The petition was dismissed when petitioner failed to file a complete

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application to proceed in forma pauperis (“IFP”), or pay the filing fee of $5.00, by a required

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date. Petitioner has now filed a complete IFP application. Accordingly, the action is hereby

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REOPENED. The order of dismissal (Docket No. 9) and the judgment (Docket No. 10) are

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hereby VACATED. The petition is now before the Court for review pursuant to 28 U.S.C.

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§ 2243 and Rule 4 of the Rules Governing Section 2254 Cases.

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No. C 11-01813 RS (PR)
ORDER DISMISSING PETITION WITH LEAVE TO AMEND

BACKGROUND

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According to the petition, petitioner was convicted of an unnamed offense in 2003 in

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Santa Clara County, and sentenced to eight years in state prison. The petition fails to specify

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what crime or crimes petitioner was convicted of, or what judicial relief he pursued after his

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conviction(s).

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DISCUSSION

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This Court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

United States District Court
For the Northern District of California

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A district court considering an application for a writ of habeas corpus shall “award the writ or

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issue an order directing the respondent to show cause why the writ should not be granted,

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unless it appears from the application that the applicant or person detained is not entitled

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thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in

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the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See

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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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The petition (A) fails to state grounds for federal habeas relief, and (B) may be barred.

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As to (A), petitioner’s sole claim is that he was not advised at his probation report interview

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of his right to have counsel present. Petitioner has not shown that there is a federal

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constitutional right to be so advised, or to have counsel present, at such a proceeding.

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As to (B), the petition may be barred by AEDPA’s statute of limitations. Federal

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habeas petitions must be filed within one year of the latest of the date on which: (1) the

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judgment became final after the conclusion of direct review or the time passed for seeking

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direct review; (2) an impediment to filing an application created by unconstitutional state

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action was removed, if such action prevented petitioner from filing; (3) the constitutional

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right asserted was recognized by the Supreme Court, if the right was newly recognized by the

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Supreme Court and made retroactive to cases on collateral review; or (4) the factual predicate

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of the claim could have been discovered through the exercise of due diligence. See 28 U.S.C.

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No. C 11-01813 RS (PR)
ORDER DISMISSING PETITION WITH LEAVE TO AMEND
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§ 2244(d)(1). Petitioner was convicted in 2003, and he filed the instant petition in 2011, well

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more than a year after his conviction. Therefore, on its face, the petition appears untimely.

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Petitioner may be entitled to tolling if he pursued judicial relief after he was convicted, or if

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the one-year statute of limitations started later than 2003 for some legally sufficient reason.

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The petition, however, fails to provide clear details of any relief petitioner pursued, or any

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reason the statute of limitations did not start in 2003. Petitioner must provide sufficient

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details of what relief he pursued, if any, including the courts to which he applied for relief,

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the dates on which he filed for relief, and the dates on which the courts rendered their

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decisions.

United States District Court
For the Northern District of California

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Also as to (2), petitioner has not shown that he has exhausted his claim prior to filing

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the instant petition. Prisoners in state custody who wish to challenge collaterally in federal

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habeas proceedings either the fact or length of their confinement are first required to exhaust

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state judicial remedies, either on direct appeal or through collateral proceedings, by

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presenting the highest state court available with a fair opportunity to rule on the merits of

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each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c);

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Rose v. Lundy, 455 U.S. 509, 515–16 (1982); Duckworth v. Serrano, 454 U.S. 1, 3 (1981).

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The state’s highest court must be given an opportunity to rule on the claims even if review is

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discretionary. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

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Accordingly, the petition is DISMISSED with leave to amend. Petitioner shall file an

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amended petition addressing the concerns detailed above within 30 days from the date this

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order is filed. More specifically, in addition to providing specific details about his 2003

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conviction, petitioner must show that (1) he has a federal constitutional right to counsel at a

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probation interview proceeding and to be informed of such right; (2) the petition is timely

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under AEDPA; and (3) he exhausted his claim in state court prior to filing the instant habeas

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petition.

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The first amended petition must include the caption and civil case number used in this
order (11-01813 RS (PR)) and the words FIRST AMENDED PETITION on the first page.

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No. C 11-01813 RS (PR)
ORDER DISMISSING PETITION WITH LEAVE TO AMEND
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Because an amended petition completely replaces the previous petitions, petitioner must

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include in his first amended petition all the claims he wishes to present. Petitioner may not

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incorporate material from the prior petition by reference. Failure to file an amended petition

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in accordance with this order will result in dismissal of this action without further notice to

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petitioner.

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Petitioner’s motion to proceed IFP (Docket No. 11) is GRANTED. The Clerk is

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directed to reopen this action.

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IT IS SO ORDERED.

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United States District Court
For the Northern District of California

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DATED: June 13, 2011
RICHARD SEEBORG
United States District Judge

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No. C 11-01813 RS (PR)
ORDER DISMISSING PETITION WITH LEAVE TO AMEND
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