Young v. City and County of San Francisco

Filing 27

ORDER OF DISMISSAL AND DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Thelton E. Henderson on 01/07/2016. (tmiS, COURT STAFF) (Filed on 1/8/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HUGUETTE NICOLE YOUNG,

Case No.

14-cv-4778-TEH

Petitioner,
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v.

ORDER OF DISMISSAL AND DENYING
CERTIFICATE OF APPEALABILITY

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CITY OF SAN FRANCISCO,

Re: Dkt. Nos. 25, 26

Respondent.

United States District Court
Northern District of California

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Petitioner, Huguette Nicole Young, proceeds with a pro se

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Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254,

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challenging a judgment of conviction from the San Francisco

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County Superior Court.

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leave to amend and Petitioner has filed a second amended

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petition.

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The amended petition was dismissed with

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Petitioner was found guilty after a jury trial of two counts

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of depriving a lawful custodian of the right to child custody.

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Petitioner was sentenced to one year in county jail, three years

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of probation, and a three year stay away order from the children.

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The California Court of Appeal affirmed her conviction and

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modified the judgment.

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review.

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The California Supreme Court denied

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II

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This Court may entertain a petition for a writ of habeas

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corpus “in behalf of a person in custody pursuant to the judgment

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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

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States.”

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an order directing the respondent to show cause why the writ

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should not be granted, unless it appears from the application

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that the applicant or person detained is not entitled thereto.”

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United States District Court
Northern District of California

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28 U.S.C. § 2254(a).

It shall “award the writ or issue

Id. § 2243.
The original petition that was dismissed with leave to amend

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asserted the following claims:

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overly broad and violates due process; (2) the term ‘maliciously’

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in § 287.5 is vague and violates due process; (3) the trial court

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erred in imposing the three year stay away order; (4) the state

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enforces unconstitutional family laws; (5) the prosecution argued

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evidence that was incorrect; (6) improper jury instructions; (7)

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she was arrested without a warrant; (8) there was misleading

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audio evidence introduced at trial; (9) the assignment of the

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trial judge was improper; (10) the jury was improperly selected;

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and (11) ineffective assistance of counsel.

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(1) penal law section 287.5 is

Petitioner indicated that she filed a direct appeal that was

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denied by the California Court of Appeal and the California

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Supreme Court later denied review.

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she filed any state habeas petitions.

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included the briefs filed in state court but the Court reviewed

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the denial by the California Court of Appeal.

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No. A132461, 2012 WL 222530 (Cal. Ct. App. Jan. 22, 2013).
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There was no indication that
Petitioner had not

People v. Young,
It

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appeared that many of the claims in the federal petition had not

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been exhausted.1

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The original petition was dismissed with leave to amend for

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Petitioner to demonstrate that all claims had been exhausted,

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file an amended petition with only exhausted claims, or file a

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motion to stay.

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failed to follow the Court’s instructions.

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Petitioner then filed an amended petition but

The amended petition was more than 1000 pages in length and
sought relief outside of § 2254.

Petitioner sought money damages

and relief regarding the family court case and several officials

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United States District Court
Northern District of California

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involved with that case.

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11 claims, the amended petition contained 20 claims many of which

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were unexhausted and many which were not proper federal habeas

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claims.

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Where the original petition contained

Petitioner was again informed that she had multiple options

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because it was a mixed petition.

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petition containing only exhausted claims.

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that were presented to the California Supreme Court after the

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California Court of Appeal denied her appeal in People v. Young,

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No. A132461, 2012 WL 222530 (Cal. Ct. App. Jan. 22, 2013).

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Petitioner could file a motion to stay as discussed in the prior

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screening order.

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She could file a second amended
These were the claims

Or

Petitioner has now submitted a second amended petition

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(Docket No. 26).

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issues that are beyond the scope of federal habeas review.

The second amended petition raises several
To

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Liberally construed, it appeared from the California Court of
Appeal opinion that claims one, three, six, and eleven were
raised on direct appeal.
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the extent Petitioner also seeks advice on how to proceed, the

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Court cannot provide legal advice.

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clear that the court has “no obligation to act as counsel or

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paralegal to pro se litigants.”

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231 (2004).

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The Supreme Court has made it

Pliler v. Ford, 542 U.S. 225,

The second amended petition also includes five claims: (1)

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the district attorney’s office charged Petitioner with depriving

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a lawful custodian of the right to child custody in retaliation

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for her challenges to California’s family law system and her
public criticism of the pharmaceutical and tobacco industries and

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United States District Court
Northern District of California

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these charges were made without a grand jury indictment; (2)

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Petitioner lost her right to 50% custody of her children in

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retaliation for voicing her opinions discussed above; (3) an

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investigator for the district attorney’s office determined that

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Petitioner’s husband had a right to spank their children; (4) in

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2000 the California Supreme Court denied review after the

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California Court of Appeal changed a jury award to Petitioner

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from $200,000 to $1; and (5) California levied a $1,900 tax debt

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against Petitioner.

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Before she may challenge either the fact or length of her

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confinement in a habeas petition in this court, Petitioner must

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present to the California Supreme Court any claims she wishes to

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raise in this court.

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(holding every claim raised in federal habeas petition must be

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exhausted).

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must dismiss a federal habeas petition containing any claim as to

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which state remedies have not been exhausted.

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with a post-AEDPA mixed petition, the district court must sua

See Rose v. Lundy, 455 U.S. 509, 522 (1982)

The general rule is that a federal district court

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Id.

When faced

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sponte inform the habeas petitioner of the mixed petition

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deficiency and provide her an opportunity to amend the mixed

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petition by striking unexhausted claims as an alternative to

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suffering dismissal before the court may dismiss the petition.

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Jefferson v. Budge, 419 F.3d 1013, 1016 (9th Cir. 2005) (citing

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Rhines v. Weber, 544 U.S. 269, 277 (2005)) (court's erroneous

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dismissal of mixed petition entitled petitioner to equitable

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tolling of one-year AEDPA statute of limitations from the date

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the first habeas petition was dismissed until the date the second

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United States District Court
Northern District of California

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habeas petition was filed).
However, a fully unexhausted federal habeas petition may not

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be stayed and must be dismissed.

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448 F.3d 1150, 1154 (9th Cir. 2006) (holding that a fully

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unexhausted petition may not be stayed and observing: “Once a

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district court determines that a habeas petition contains only

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unexhausted claims, it need not inquire further as to the

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petitioner's intentions.

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habeas petition for failure to exhaust.”); Jones v. McDaniel, 320

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Fed. Appx. 784, 786 (9th Cir.2009) (affirming the dismissal of a

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fully unexhausted petition and denial of a stay, because a

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“Rhines stay is only available for a mixed habeas petition where

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at least some of the claims have been exhausted, and none of

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[petitioner's] claims were exhausted”).

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See, e.g., Rasberry v. Garcia,

Instead, it may simply dismiss the

All the claims in the second amended petition have not been

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exhausted and many of them fail to present cognizable federal

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habeas claims.

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unexhausted and Petitioner has already been provided multiple

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opportunities to continue with available exhausted claims or file

Because the second amended petition is fully

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a stay, this case is dismissed.2

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III

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For the foregoing reasons and for good cause shown,

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1.

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The motion for an extension (Docket No. 25) is GRANTED

and the second amended petition is deemed timely filed.

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2.

The motion (Docket No. 26) is DENIED and the second

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amended petition is DISMISSED and the Clerk shall close this

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case.

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3.

Because reasonable jurists would not find the result

here debatable, a certificate of appealability (“COA”) is DENIED.

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United States District Court
Northern District of California

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See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) (standard for

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COA).

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IT IS SO ORDERED.
Dated: 01/07/2016

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________________________
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\HC.14\Young4778.dsm2.docx

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The second amended petition also states in the caption it is a
motion to stay, however Petitioner presents no arguments why she
is entitled to a stay and the petition only contains unexhausted
claims which cannot be stayed.
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