Riley v. Grounds

Filing 15

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS. Signed by Judge Thelton E. Henderson on 03/10/2014. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 3/11/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SHANNON RILEY,

United States District Court
For the Northern District of California

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No. C-13-2524 TEH (PR)
Petitioner,
ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS

v.

(Doc. #8)

RANDY GROUNDS, Warden,
Respondent.
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Petitioner Shannon Riley, a state prisoner incarcerated at
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Salinas Valley State Prison (SVSP) in Soledad, California, has filed
a pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254
alleging that a document in his prison file falsely identifies him
as a sex offender and that this could be used as a negative factor
in determining unsuitability when he is being considered for parole.
Respondent has filed a motion to dismiss.

Petitioner has filed an

opposition and Respondent has filed a reply.

For the reasons stated

below, the Court grants the motion to dismiss.
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Respondent argues that the petition must be dismissed
because it is unexhausted, it is procedurally defaulted and it fails

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to state a cognizable federal habeas claim for relief.1

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A

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Prisoners in state custody who wish to challenge in

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federal habeas proceedings either the fact or length of their

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confinement are first required to exhaust state judicial remedies by

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presenting the highest state court available with a fair opportunity

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to rule on the merits of each and every claim they seek to raise in

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federal court.

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U.S. 509, 515-16 (1982).

See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455
If available state remedies have not been

United States District Court
For the Northern District of California

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exhausted as to all claims, the district court must dismiss the

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petition.

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Cir. 1988).

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to returning to federal court after exhausting available state

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remedies.

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1995).

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Id. at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th
A dismissal solely for failure to exhaust is not a bar

Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir.

The exhaustion-of-state-remedies doctrine reflects a

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policy of federal-state comity to give the state "the initial

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'opportunity to pass upon and correct alleged violations of its

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prisoners' federal rights.’"

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(1971) (citations omitted).

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only if the federal claim (1) has been "fairly presented" to the

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state courts, id.; Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir.

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2004); or (2) no state remedy remains available, see Johnson v.

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Zenon, 88 F.3d 828, 829 (9th Cir. 1996).

Picard v. Connor, 404 U.S. 270, 275
The exhaustion requirement is satisfied

However, a claim is not

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Respondent first argues procedural default and then exhaustion. Because the
procedural default claim is based on Petitioner's failure to exhaust, the Court
addresses lack of exhaustion first.

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fairly presented to the state's highest court if it is raised in a

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procedural context which makes it unlikely that it will be

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considered on the merits.

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(1989); Casey v. Moore, 386 F.3d 896, 917 (9th Cir. 2004); Kibler v.

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Walters, 220 F. 3d 1151, 1153 (9th Cir. 2000).

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Castille v. Peoples, 489 U.S. 346, 351

Even though non-exhaustion is an affirmative defense, the

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petitioner bears the burden of proof that state judicial remedies

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were properly exhausted.

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Cir. 2005); see Darr v. Burford, 339 U.S. 200, 218-19 (1950)

Parker v. Kelchner, 429 F.3d 58, 62 (3d

United States District Court
For the Northern District of California

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("petitioner has the burden . . . of showing that other available

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remedies have been exhausted"), overruled on other grounds, Fay v.

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Noia, 372 U.S. 391 (1963).

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When the petitioner challenges a prison grievance, the

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prison's internal administrative remedies must be exhausted before

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the petitioner may seek judicial relief.

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921, 925 (1979).

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In re Dexter, 25 Cal. 3d

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On May 14, 2012, the Monterey County Superior Court denied

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Petitioner's habeas petition on the ground that Petitioner had not

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"exhausted administrative remedies through the Director's Level of

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Appeal, which he must do before seeking judicial review of his

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claims."

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No. HC 7675, at 1, Monterey County Sup. Ct. May 14, 2012.

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Superior Court summarized the facts of Petitioner’s claim as

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follows:

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Pl.'s Opp, Ex. D, In re Shannon Riley, On Habeas Corpus,
The

According to Petitioner, when he received a copy of his record
from his recent program review with the Unit Classification
Committee (UCC), he noticed an entry which reflected that he
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had a prior arrest history as a sex offender disrupting a
school. . . . He alleges that this entry is false. . . . He
alleges that he talked to his counselor who told him to file an
administrative appeal. He states that he attempted to file an
appeal but it was cancelled as being untimely.
In re Shannon Riley, No. HC 7675 at 1.

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In denying the petition, the Superior Court explained that

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requiring exhaustion of administrative remedies "promotes judicial

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efficiency as it allows prison officials to investigate facts and

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correct any problems before there is need for a court to get

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involved."

Id.

The court noted that Petitioner's appeal was

United States District Court
For the Northern District of California

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canceled as untimely and "he failed to appeal the cancellation,

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which if processed, would have allowed him to exhaust his

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administrative remedies."

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Petitioner failed to state sufficient facts to waive the exhaustion

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requirement.

Id. at 1-2.

The court also ruled that

Id. at 2.

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The Superior Court also addressed the merits of

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Petitioner's claim, noting that Petitioner merely contended that the

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allegation that he was a sex offender was false, but presented no

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documentary evidence to support his position.

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Id.

Petitioner filed a petition with the California Court of

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Appeal, which was summarily denied.

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filed a petition in the California Supreme Court which was summarily

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denied with a citation to In re Dexter, 25 Cal. 3d

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(1979).

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proposition that a state habeas petitioner "will not be afforded

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judicial relief unless he has exhausted state administrative

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remedies."

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Opp'n., Ex. J.

Opp'n., Ex. H.

Petitioner then

921, 925-26

A citation to Dexter stands for the

Id. at 925.
Based on the above authority, the petition was not fairly
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presented to the California Supreme Court because Petitioner

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submitted an unexhausted petition and, thus, that court was not able

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to rule on its merits.

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Castille, 489 U.S. at 351 (if procedural context of petition does

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not allow highest state court to rule on merits, petition is

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unexhausted).

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Therefore, the petition is unexhausted.

See

In his opposition, Petitioner concedes that the petition
is unexhausted, Opp'n at 7 at ¶ 33, but claims that exhaustion

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should be excused as an "inadvertent error" because "he was unaware

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United States District Court
For the Northern District of California

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of the fact that he could appeal a cancellation of an administrative

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appeal" and it was an extremely stressful time for him due to racial

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tension in the prison.

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Opp'n at 5.

A federal habeas court may consider an unexhausted claim
under 28 U.S.C. § 2254(b)(1)(B)(i)-(ii) if:
there is an absence of available State corrective process; or
circumstances exist that render such process ineffective to
protect the rights of the applicant.
28 U.S.C. § 2254(b)(1)(B)(i)-(ii).

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Petitioner’s own documents show that he was informed not

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only that he could appeal a cancellation decision but that this was

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the only path for eventually resubmitting the original appeal.

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Pet’n., Ex. A.

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forms accompanying the return of his appeal, the following notice

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appears:

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See

Specifically, at the bottom of each of the four

Be advised that you cannot appeal a rejected appeal, but should
take the corrective action necessary and resubmit the appeal
within the timeframes specified . . . Pursuant to CCR
3084.6(e), once an appeal has been cancelled, that appeal may
not be resubmitted. However, a separate appeal can be filed on
the cancellation decision. The original appeal may only be
resubmitted if the appeal on the cancellation is granted.
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Ex. A.

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Furthermore, it appears that Petitioner knew that he could

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appeal the cancellation, but chose not to do so because he thought

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the appeal would be futile.

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(explaining that appeal would be futile because appeal coordinator

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"has a history of arbitrarily refusing to process Petitioner’s

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appeals").

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appeal process was ineffective.

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See Pet’n. Mem. of P. and A at 4, ¶ 5

These reasons are insufficient to show that the state’s

Petitioner also argues that the California Supreme Court

United States District Court
For the Northern District of California

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prevented him from exhausting state court remedies because it denied

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his motion for a stay.

This claim is based on the following facts.

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After the California Court of Appeal denied his habeas

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petition, Petitioner filed an untimely petition for review and a

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stay motion in the California Supreme Court.

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a letter dated November 2, 2012, the Court informed Petitioner that

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it lacked jurisdiction over his petition for review because he had

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filed it after the one-month deadline.

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November 21, 2012, the Court informed Petitioner that, although it

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lost jurisdiction to act on a petition for review of the Court of

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Appeal’s decision, he could file a petition for a writ of habeas

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corpus, and enclosed the correct form.

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petition in the California Supreme Court, which was summarily denied

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on February 27, 2013 with a citation to In re Dexter.

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Opp. Ex. H at 2-3.

In

However, in a letter dated

Petitioner then filed a

Thus, the California Supreme Court read and considered

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Petitioner’s petition for habeas relief.

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grant his motion for a stay regarding his petition for review of the

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Court of Appeal’s order did not prevent Petitioner from presenting

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The fact that it did not

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his petition to the state’s highest court.
Petitioner fails to demonstrate that there was an absence

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of an available state corrective process or that circumstances

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rendered this process ineffective to protect his rights.

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petition is unexhausted and is dismissed on this ground.

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II

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The

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As noted above, the California Supreme Court denied
Petitioner’s petition with a citation to In re Dexter, 25 Cal. 3d

United States District Court
For the Northern District of California

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921 (1979).

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petitioner "will not be afforded judicial relief unless he has

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exhausted state administrative remedies."

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contends that the procedural default invoked by the California

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Supreme Court bars this petition.

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Dexter stands for the proposition that a state habeas

Id. at 925.

Respondent

In all cases in which a state prisoner has defaulted his

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federal claims in state court pursuant to an independent and

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adequate state procedural rule, federal habeas review of the claims

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is barred unless the prisoner can demonstrate cause for the default

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and actual prejudice as a result of the alleged violation of federal

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law, or demonstrate that failure to consider the claims will result

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in a fundamental miscarriage of justice.

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U.S. 722, 750 (1991).

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defaulted only if the Supreme Court of California's bar was an

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independent and adequate state procedural ground and Petitioner

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cannot show that an exception to the procedural bar applies.

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Coleman v. Thompson, 501

That is, Petitioner's claim is procedurally

Petitioner does not contend that the bar was not
independent, and indeed it is clear that it was – the only reason
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given for rejecting the state petition was failure to exhaust

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administrative remedies.

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intertwined with a decision on the merits.

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state has pleaded the existence of the bar, thereby shifting the

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burden to Petitioner to come forward with specific factual

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allegations and citations to authority to demonstrate that the rule

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is not consistently enforced.

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585-86 (9th Cir. 2003).

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argues that he has shown cause and prejudice.

The ruling was in no way on the merits, or

See Bennett v. Mueller, 322 F.3d 573,

This he has not done.

United States District Court
For the Northern District of California

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As to adequacy, the

Instead, Petitioner

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The cause standard requires the petitioner to show that

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"some objective factor external to the defense" prevented

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presentation to the state court.

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493 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)).

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other words, to show cause, a petitioner must show that something

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external to himself, something that cannot be attributed to him,

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impeded his efforts to comply with the state’s procedural rule.

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Maples v. Thomas, 132 S. Ct. 912, 922 (2012).

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McCleskey v. Zant, 499 U.S. 467,
In

To show cause, Petitioner repeats the arguments he made

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above in regard to the issue of exhaustion.

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(1) he was unaware of the fact that he could appeal the cancellation

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of his administrative appeal, Opp. at 5, ¶ 17, and (2) he was under

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a great deal of stress due to the high level of racial tension at

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his prison, id. at ¶ 18.

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notified that he could appeal the cancellation of his appeal.

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Furthermore, Petitioner’s allegations of racial tension and his

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emotional distress, without more, are not sufficient to constitute

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That is, he states that

As discussed above, Petitioner was

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an external factor that prevented him from exhausting administrative

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remedies.

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Petitioner also argues that a fundamental miscarriage of

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justice would occur if his claim is not adjudicated because he "has

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provided the exact document that was used to falsely label him a

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"‘sex offender.’"

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justice, a petitioner must show that "a constitutional violation has

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probably resulted in the conviction of one who is actually

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innocent."

However, to show a fundamental miscarriage of

Murray v. Carrier, 477 U.S. 478, 496 (1986).

Because

United States District Court
For the Northern District of California

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Petitioner does not challenge his underlying conviction in this

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petition, he cannot meet this exception to the procedural bar rule.

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Respondent has established that Petitioner's claim was

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procedurally defaulted.

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on the ground of procedural default as well as on the failure to

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exhaust administrative remedies.

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Because the motion to dismiss is granted on Respondent’s first two

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grounds for relief, the Court need not address Respondent’s third

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ground for dismissal.2

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Therefore, the motion to dismiss is granted

Dismissal is with prejudice.

III

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Petitioner has not shown "that jurists of reason would

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find it debatable whether the petition states a valid claim of the

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denial of a constitutional right [or] that jurists of reason would

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Petitioner is advised to review pages 11-12 of Respondent’s
motion which describes California Penal Code section 626.8, which
Respondent indicates is the section in Petitioner’s record that he
challenges in this petition. Respondent clarifies that this section
does not describe a sex offense, but provides that disruption of a
school is a misdemeanor, resulting in mandatory jail time if the
offender has been convicted of an enumerated sex crime and that it
does not indicate that Petitioner is a sex offender.
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find it debatable whether the district court was correct in its

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procedural ruling."

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Accordingly, a certificate of appealability is DENIED.

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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CONCLUSION

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Based on the foregoing, the Court orders as follows:

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1. Respondent’s motion to dismiss is GRANTED.

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is with prejudice.

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2. A certificate of appealability is denied

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3. This order terminates docket number 8.

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United States District Court
For the Northern District of California

Dismissal

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4. The Clerk of the Court shall enter a separate judgment
and close the file.

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IT IS SO ORDERED.

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DATED

03/10/2014

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THELTON E. HENDERSON
United States District Judge

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