Hoover v. Martel

Filing 4

ORDER of Dismissal. Signed by Judge Edward M. Chen on 12/13/2011. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 12/13/2011)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 WILLIAM DON HOOVER, 9 Petitioner, v. ORDER OF DISMISSAL 11 For the Northern District of California United States District Court 10 No. C-11-4734 EMC (pr) MICHAEL MARTEL, Warden, 12 Respondent. ___________________________________/ 13 14 15 16 INTRODUCTION William Don Hoover, an inmate at San Quentin State Prison, filed this pro se action for a 17 writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the Court for review 18 pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. The petition 19 will be summarily dismissed without prejudice because state court remedies have not been 20 exhausted on nay of his claims. 21 BACKGROUND 22 The petition and attachments thereto provide the following information: Hoover pled no 23 contest and was convicted in Napa County Superior Court of possession of methamphetamine for 24 sale and was found to have suffered four prior prison terms. On September 22, 2010, Hoover was 25 sentenced to a total of eight years in prison. 26 Hoover appealed. The judgment of conviction was affirmed by the California Court of 27 Appeal on May 18, 2011. Hoover attempted to seek review in the California Supreme Court by 28 filing a notice of appeal and request for extension of the deadline to file a petition for review. The 1 California Supreme Court construed the filing to be a petition for review and denied it on July 27, 2 2011. 3 Hoover then filed this action. In his federal petition, Hoover alleges three claims: (1) he 4 received ineffective assistance of trial counsel, (2) he was denied his Sixth Amendment right to hire 5 counsel of his choosing, and (3) the California Supreme Court denied him due process by refusing to 6 allow him to submit an opening brief before denying his petition. 7 8 9 DISCUSSION Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court 11 For the Northern District of California United States District Court 10 available with a fair opportunity to rule on the merits of each and every claim they seek to raise in 12 federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). A fully 13 unexhausted petition must be dismissed. See generally Rose, 455 U.S. at 510. A district court does 14 not have discretion to stay a petition containing only unexhausted claims. See Rasberry v. Garcia, 15 448 F.3d 1150, 1154 (9th Cir. 2006). 16 Hoover has not exhausted state court remedies as to any of his claims because none of his 17 claims were presented to the California Supreme Court to give that court a fair opportunity to rule on 18 the merits. The California Court of Appeal had considered his case after appellate counsel had filed 19 a Wende brief1 – a brief that, by its very nature, presented no legal claims – and Hoover had not filed 20 any supplemental brief to raise any legal claim. Petition, Ex. A at Ex. A1, p. 2. The California 21 Court of Appeal found “no meritorious issues to be argued, or that require further briefing on 22 appeal.” Petition, Ex. A at Ex. A1. After the California Court of Appeal affirmed, Hoover 23 1 24 25 26 27 28 Under California’s Wende brief procedure, see People v. Wende, 25 Cal.3d 436 (1979), counsel, upon concluding that an appeal would be frivolous, (1) files a brief with the appellate court that summarizes the procedural and factual history of the case, (2) attests that he has reviewed the record, explained his evaluation of the case to his client, provided the client with a copy of the brief, and informed the client of his right to file a pro se supplemental brief, and (3) requests that the appellate court independently examine the record for arguable issues. The state appellate court, upon receiving a Wende brief, conducts a review of the entire record and affirms if it finds the appeal to be frivolous. If, however, it finds an arguable (i.e., nonfrivolous) issue, it orders briefing on that issue. See Smith v. Robbins, 528 U.S. 259, 266 (2000). 2 1 attempted to seek relief in the California Supreme Court.2 The California Supreme Court denied 2 review. The activities in the California Supreme Court did not exhaust any issue. “As a policy 3 matter, on petition for review the Supreme Court normally will not consider an issue that the 4 petitioner failed to timely raise in the Court of Appeal.” Cal. Rule of Court 8.500(c)(1). As the 5 California Court of Appeal had been presented with no legal claims from Hoover’s counsel or 6 Hoover, and had found no claims worthy of consideration on its own, the California Supreme Court 7 had no legal claim before it. Hoover identified some legal claims in his notice of appeal to the 8 California Supreme Court, but those claims were beyond the scope of what the California Supreme 9 Court would have considered on review because none of those claims had been raised in the 11 For the Northern District of California United States District Court 10 California Court of Appeal. State court remedies have not been exhausted for any of the three claims in the federal 12 petition. The petition therefore must be dismissed and may not be stayed while Hoover exhausts 13 state court remedies. See Rasberry, 448 F.3d at 1154. Hoover is urged to act swiftly to exhaust his 14 state court remedies and immediately file a new federal habeas petition after he receives a decision 15 from the California Supreme Court to avoid running afoul of the one-year statute of limitations on 16 the filing of federal habeas petitions, 28 U.S.C. § 2244(d). 17 CONCLUSION 18 This action is dismissed because state court remedies have not been exhausted for any of the 19 claims in the petition. This dismissal is without prejudice to Hoover filing a new action after he 20 exhausts state court remedies. When Hoover files that new petition after exhausting, he should not 21 include the case number for this case on that petition because this action is now being closed. 22 Instead, Hoover should leave the case number blank, and a new case number will be assigned by the 23 Court when the new petition is filed. 24 25 26 27 28 2 Hoover never filed a petition for review that discussed the merits because his notice of appeal was construed by the California Supreme Court to be a petition for review and then denied by that court. In the notice of appeal, Hoover had stated that he challenged “the validity of the plea” made “in a coercive and erroneous process based on illegal search, and based on erroneous advice by the public defender.” Petition, Ex. A at Ex. A1. 3 1 Hoover’s application to proceed in forma pauperis is DENIED. (Docket # 2.) Although 2 notified by the Court of the deficiency, Hoover failed to file the certificate of funds and copy of his 3 inmate trust account statement needed to complete the application. 4 The Clerk shall close the file. 5 6 IT IS SO ORDERED. 7 8 Dated: December 13, 2011 9 _________________________ EDWARD M. CHEN United States District Judge 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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