Stamos, Jr. v. Davey

Filing 20

ORDER GRANTING 12 MOTION TO DISMISS and DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Thelton E. Henderson on 1/31/2017. (Attachments: # 1 Certificate/Proof of Service)(afmS, COURT STAFF) (Filed on 1/31/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES GEORGE STAMOS, Jr.,

Case No.

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v.

ORDER GRANTING MOTION TO
DISMISS AND DENYING
CERTIFICATE OF APPEALABILITY

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16-cv-4860-TEH

Petitioner,

DAVID DAVEY,

Dkt. Nos. 12, 19

Respondent.

United States District Court
Northern District of California

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Petitioner, James George Stamos Jr., a state prisoner,

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proceeds with a pro se Petition for a Writ of Habeas Corpus under

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28 U.S.C. § 2254 challenging a prison disciplinary decision that

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resulted in the loss of credits.

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to dismiss on the grounds that the petition is unexhausted and

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procedurally barred.

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the reasons set forth below, the Court GRANTS the motion.

Respondent has filed a motion

Petitioner has filed an opposition.

For

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Petitioner is serving a seven-year prison term.

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Petition at

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2.

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disciplinary hearing and was assessed a 150-day time-credit

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forfeiture.

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On March 1, 2015, Petitioner was found guilty at a prison

Id. at 6.
II

Prisoners in state custody who wish to challenge

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collaterally in federal habeas proceedings either the fact or

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length of their confinement are first required to exhaust state

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judicial remedies, either on direct appeal or through collateral

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proceedings, by presenting the highest state court available with

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a fair opportunity to rule on the merits of each and every claim

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they seek to raise in federal court.

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(c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982).

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See 28 U.S.C. § 2254(b),

In this case, the California Supreme Court denied

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Petitioner's petition with a citation to In re Dexter, 25 Cal.3d

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921, 925-26 (1979).

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Dexter, the California Supreme Court held that the court will not

Motion to Dismiss (“MTD”), Ex. 5.

In In re

afford a prisoner judicial relief unless he has first exhausted

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United States District Court
Northern District of California

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available administrative remedies.

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California Supreme Court's citation to In re Dexter demonstrates

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that the court did not reach the merits of Petitioner's claims

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because he failed to exhaust his available administrative

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remedies.

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Cir. 1974) (en banc) (“If the denial of the habeas corpus

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petition includes a citation of an authority which indicates that

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the petition was procedurally deficient or if the California

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Supreme Court so states explicitly, then the available state

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remedies have not been exhausted as the California Supreme Court

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has not been given the required fair opportunity to correct the

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constitutional violation.”).

25 Cal.3d at 925.

The

See Harris v. Super. Ct., 500 F.2d 1124, 1128 (9th

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District courts in California have consistently held that if

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the California Supreme Court denies a petition with a citation to

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In re Dexter, the prisoner has not exhausted state court remedies

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as required.

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(PR), 2014 WL 988986 at *4 (N.D. Cal. Mar. 10, 2014) (granting

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motion to dismiss petition as unexhausted in light of California

See, e.g., Riley v. Grounds, No. C–13–2524 TEH

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Supreme Court's summary denial with a citation to In re Dexter);

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Turner v. Director of CDC, No. 1:14–cv–00392 LJO JLT, 2014 WL

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4458885 at *3 n.2 (E.D. Cal. Sept. 10, 2014) (“[F]or exhaustion

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purposes, the citation to Dexter alone is sufficient, without the

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need to review the state petition, to establish that the claims

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in the first amended petition were never considered on their

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merits by the state court and, thus, were not „fairly presented‟

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within the meaning of AEDPA.”); Dean v. Diaz, No. 1:14–cv–00209

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SKO HC, 2014 WL 1275706 at *5 (E.D. Cal. Mar. 26, 2014) (“This
court has regularly relied on a citation to Dexter to find that a

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United States District Court
Northern District of California

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federal petition is unexhausted.”).

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Petitioner retained the ability to refile his state habeas

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petition after exhausting his claims through the administrative

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procedure but he filed this federal petition instead.

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of the California Supreme Court's citation to In re Dexter, the

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Court finds that Petitioner has not exhausted his claims.

In light

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III

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A federal court will not review questions of federal law

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decided by a state court if the decision also rests on a state

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law ground that is independent of the federal question and

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adequate to support the judgment.

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722, 729-30 (1991).

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United States Supreme Court, the “independent and adequate state

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ground” doctrine goes to jurisdiction; in federal habeas cases,

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in whatever court, it is a matter of comity and federalism.

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Coleman v. Thompson, 501 U.S.

In the context of direct review by the

Id.

In cases in which a state prisoner has defaulted his federal

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claims in state court pursuant to an independent and adequate

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state procedural rule, federal habeas review of the claims is
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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

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federal law, or demonstrate that failure to consider the claims

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will result in a fundamental miscarriage of justice.

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501 U.S. at 750.

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presented to the state courts, but an independent and adequate

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state procedural rule exists which bars their review, claims are

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procedurally barred in federal habeas review.

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386 F.3d 896, 919 (9th Cir. 2004) (finding that Washington‟s

Coleman,

Where petitioner‟s claims were not fairly

Casey v. Moore,

state procedural rule setting one-year limit on a personal

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United States District Court
Northern District of California

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restraint petition which raises a federal claim not raised on

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direct review precludes federal review of claim that would no

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longer be timely under that rule).

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California's administrative exhaustion rule is based solely

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on state law and is therefore independent of federal law.

See

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Carter v. Giurbino, 385 F.3d 1194, 1197–98 (9th Cir. 2004) (“A

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state ground is independent only if it is not interwoven with

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federal law.”); see also Cal. Code Regs. tit. 15, § 3084.1(a)

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(prisoners may appeal “any policy, decision, action, condition,

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or omission by the department or its staff that the inmate or

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parolee can demonstrate as having a material adverse effect upon

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his or her health, safety, or welfare”).

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administrative exhaustion rule has also been firmly established

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and has been regularly followed since 1941 and is therefore

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adequate to support a judgment.

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App., 17 Cal.2d 280, 292 (1941) (“the rule is that where an

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administrative remedy is provided by statute, relief must be

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sought from the administrative body and this remedy exhausted

California's

See Abelleira v. Dist. Ct. of

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before the courts will act.”); In re Muszalski, 52 Cal. App. 3d

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500, 503 (1975) (“It is well settled as a general proposition

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that a litigant will not be afforded relief in the courts unless

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and until he has exhausted available administrative remedies.”);

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see also Drake v. Adams, No. 2:07–cv–00577 JKS, 2009 WL 2474826

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at *2 (E.D. Cal. Aug. 11, 2009) (“In reviewing California cases

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in which the issue of exhaustion was decided during the past 10

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years, the Court was unable to find a single case in which a

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California appellate court did not deny a petition for failure to
exhaust administrative remedies.

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United States District Court
Northern District of California

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be well established and consistently applied.”).

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Thus, this doctrine appears to

Federal courts in California have repeatedly held that if

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the California Supreme Court denies a petition with a citation to

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In re Dexter federal habeas review is procedurally barred because

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California's administrative exhaustion rule is both independent

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of federal law and adequate to support the state court judgment.

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See Bartholomew v. Haviland, 467 F. App‟x 729, 730-31 (9th Cir.

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2012) (petition was procedurally barred for failure to exhaust

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prison appeals process); see also Riley, 2014 WL 988986 at *4

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(granting motion to dismiss petition as procedurally barred in

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light of California Supreme Court summary denial with a citation

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to In re Dexter); Turner, 2013 WL 4458885 at *6 (petitioner's

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remaining claims procedurally barred pursuant to California

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Supreme Court's citation to In re Dexter);

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1:13–cv–00335 AWI GSA HC, 2013 WL 3773869 at *2-3 (E.D. Cal. July

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17, 2013) (petitioner's claims procedurally barred after

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California Supreme Court denied state petition with citation to

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In re Dexter); Foster v. Cate, No. 1:12–cv–01539 AWI BAM HC, 2013
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Yeh v. Hamilton, No.

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WL 1499481 at *3-4 (E.D. Cal. Apr. 11, 2013) (California Supreme

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Court's citation to In re Dexter is both independent and adequate

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and therefore respondent is correct that federal habeas review is

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procedurally barred).
Petitioner has not alleged any facts to cast doubt on the

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adequacy or consistent application of California's administrative

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exhaustion rule.

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Cir. 2003).

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finds that Petitioner‟s claims are procedurally defaulted.

See Bennett v. Mueller, 322 F.3d 573, 586 (9th

The Court agrees with decisions cited above, and

As noted above, the Court may still consider Petitioner's

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United States District Court
Northern District of California

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claims if he demonstrates: (1) cause for the default and actual

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prejudice resulting from the alleged violation of federal law, or

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(2) a fundamental miscarriage of justice. Coleman, 501 U.S. at

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750.

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ordinarily turn on whether the prisoner can show that some

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objective factor external to the defense impeded counsel's

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efforts to comply with the State's procedural rule.

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Zant, 499 U.S. 467, 493–94 (1991). Examples of cause include

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showings “that the factual or legal basis for a claim was not

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reasonably available to counsel,” “that some interference by

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officials made compliance impracticable,” or “of ineffective

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assistance of counsel.”

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(1986).

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The existence of cause for a procedural default must

McCleskey v.

Murray v. Carrier, 477 U.S. 478, 488

Prejudice is difficult to demonstrate:
The showing of prejudice required under
Wainwright v. Sykes [433 U.S. 72 (1977)]is
significantly greater than that necessary
under “the more vague inquiry suggested by
the words „plain error.‟”
Engle [v. Isaac],
456 U.S., at 135, 102 S.Ct., at 1575; [United
States v.]Frady, supra, 456 U.S., at 166, 102
S.Ct., at 1593. See also Henderson v. Kibbe,
431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52
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L.Ed.2d 203 (1977). The habeas petitioner
must show “not merely that the errors at . .
. trial created a possibility of prejudice,
but that they worked to his actual and
substantial
disadvantage,
infecting
his
entire trial with error of constitutional
dimensions.”
Frady, supra, at 170, 102
S.Ct., at 1596.

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Id. at 493–494 (omission in original).
Petitioner argues in his opposition that prison officials

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interfered with his ability to properly exhaust his

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administrative remedies.

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cause, he has failed to demonstrate or even argue prejudice.

Even assuming that Petitioner can show
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does a review of the petition or exhibits for the various filings

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United States District Court
Northern District of California

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demonstrate prejudice that would meet the high standard described

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above.

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show a fundamental miscarriage of justice.

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reasons, the claims are procedurally barred and the Court cannot

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consider the petition.

For these same reasons, Petitioner has also failed to
For all these

IV

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For the foregoing reasons and for good cause shown,

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1.

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Respondent‟s motion to dismiss (Docket No. 12) is

GRANTED and the petition is DISMISSED.
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Petitioner‟s request for accommodations (Docket No. 19)

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is DENIED.

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relief.

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3.

Petitioner may file a civil rights action if he seeks

Petitioner has failed to make a substantial showing that

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a reasonable jurist would find this Court‟s denial of his claims

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debatable or wrong.

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Consequently, no certificate of appealability is warranted in

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this case.

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

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The Clerk is directed to enter Judgment in favor of

Respondent and against Petitioner and close the file.
IT IS SO ORDERED.
Dated:1/31/2017
________________________
THELTON E. HENDERSON
United States District Judge

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United States District Court
Northern District of California

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