Damoun v. Harris

Filing 7

ORDER DIRECTING PETITIONER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST; GRANTING 2 LEAVE TO PROCEED IN FORMA PAUPERIS Habeas. Signed by Judge Haywood S. Gilliam, Jr. on 5/18/2015. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 5/18/2015)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

VANCOIS L. DAMOUN,

Case No. 15-cv-00583-HSG (PR)

Petitioner,
8
v.
9
10

KAMALA HARRIS,
Respondent.

11

ORDER DIRECTING PETITIONER TO
SHOW CAUSE WHY PETITION
SHOULD NOT BE DISMISSED FOR
FAILURE TO EXHAUST; GRANTING
LEAVE TO PROCEED IN FORMA
PAUPERIS

United States District Court
Northern District of California

Re: Dkt. No. 2
12
13
INTRODUCTION
14
Petitioner filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
15
The petition is now before the Court for review pursuant to 28 U.S.C. §2243 and Rule 4 of the
16
Rules Governing Section 2254 Cases in the United States District Courts. Petitioner seeks leave
17
to proceed in forma pauperis.
18
BACKGROUND
19
The petition discloses that in 2012 petitioner was convicted in Sonoma County Superior
20
Court of possession of a controlled substance with intent to sell. He was sentenced to four years
21
of probation. The California Court of Appeal affirmed his conviction. Although petitioner
22
indicates in his petition that he did not appeal to the California Supreme Court, the California
23

Appellate Court’s on-line Register of Actions reflects that the California Supreme Court denied

24
review on July 9, 2014. Petitioner reports that he did not file any state habeas petitions before
25

filing this action, and the California Appellate Court’s on-line Register of Actions shows no

26
habeas action brought by petitioner in the California Court of Appeal or California Supreme
27
Court.
28

DISCUSSION

1
2

I.

Standard of Review
A district court may entertain a petition for writ of habeas corpus “in behalf of a person in

3

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

5

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

6

Hodges, 423 U.S. 19, 21 (1975). However, a petitioner must present to the highest state court all

7

claims he wishes to raise in a federal habeas petition. See Rose v. Lundy, 455 U.S. 509, 522

8

(1982) (holding every claim raised in federal habeas petition must be exhausted). The general rule

9

is that a federal district court must dismiss a federal habeas petition containing any claim as to

10

which state remedies have not been exhausted. Id. However, district courts have discretion to

11
United States District Court
Northern District of California

4

hold a mixed petition, that is a petition that contains exhausted and unexhausted claims, in

12

abeyance pending exhaustion of the unexhausted claims. Rasberry v. Garcia, 448 F.3d 1150,

13

1154 (9th Cir. 2006) (citing Rhines v. Weber, 544 U.S. 269 (2005)). But, a fully unexhausted

14

federal habeas petition may not be stayed and must be dismissed. Id. (holding that a fully

15

unexhausted petition may not be stayed and observing: “Once a district court determines that a

16

habeas petition contains only unexhausted claims, it need not inquire further as to the petitioner’s

17

intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust.”); Jones v.

18

McDaniel, 320 Fed. Appx. 784, 786 (9th Cir. 2009) (affirming the dismissal of a fully

19

unexhausted petition and denial of a stay, because a “Rhines stay is only available for a mixed

20

habeas petition where at least some of the claims have been exhausted, and none of [petitioner’s]

21

claims were exhausted”).

22

II.

23

Petitioner’s Claims
Petitioner asserts the following claims in his petition: (1) the prosecutor unfairly excluded

24

jurors based on race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986); (2) the trial court

25

improperly denied petitioner’s motion to substitute counsel brought pursuant to People v.

26

Marsden, 2 Cal. 3d 118 (1970); and (3) petitioner’s conviction violated California’s Medical

27

Marijuana Program Act, California Senate Bill 420.

28
2

1

The Court has compared the opinion of the California Court of Appeal on direct review1

2

with the instant petition and determines that none of the claims in the latter were included in the

3

former. Accordingly, it appears that petitioner has presented a fully unexhausted petition. If this

4

is correct, the petition must be dismissed without prejudice and may be re-filed once the claims

5

have been exhausted. However, petitioner will be provided an opportunity to demonstrate that

6

some of the claims have already been exhausted. If he is able to do this, he may qualify to have

7

his petition stayed while he exhausts his unexhausted claims in state court.
CONCLUSION

8

Based on the foregoing, the Court orders as follows:

9

1. Petitioner’s motion to proceed in forma pauperis is GRANTED.

11
United States District Court
Northern District of California

10

2. Petitioner must show cause within twenty-one (21) days of the date this order is filed

12

why his petition should not be dismissed without prejudice as unexhausted. Failure to file a

13

response within the designated time will result in the dismissal of this action.

14

This order terminates Docket No. 2.

15

IT IS SO ORDERED.

16

Dated: 5/18/2015
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

17
18
19
20
21
22
23
24
25
26
27
28

1

See People v. D’Amoun, No. A136126, 2014 WL 1293572 (Cal. Ct. App. Mar. 28, 2014).
3