Cordeiro v. Hernandez et al

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATIONS: Denying 31 Motion to Dismiss and denying without prejudice 35 Motion to Issue an Order Preventing Prison Interference with Legal Mail. Signed by Judge Marilyn L. Huff on 01/25/2010.(All non-registered users served via U.S. Mail Service)(ag) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT J. HERNANDEZ, Warden; and EDMUND GERALD BROWN, JR., the Attorney General of the State of California, Respondents. On August 18, 2008, Petitioner Derek Cordeiro ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for two counts of lewd and lascivious acts upon a minor, one count of indecent exposure, and one count of child annoyance. (Doc. No. 1 at 36.) On April 20, 2009, Petitioner filed an amended petition. (Doc. No. 28.) On June 17, 2009, Respondents filed a motion to dismiss Petitioner's petition for failure to exhaust state court remedies on six of the seven claims in Petitioner's amended petition. (Doc. No. 31.) On July 24, 2009, Petitioner filed a response in opposition to Respondents' motion to dismiss with an attachment indicating all claims exhausted in state court. (Doc. No. 33., Ex. C) On August 4, 2009, vs. DEREK L. CORDEIRO, Petitioner, CASE NO. 08-CV-01519-H (CAB) ORDER DENYING: (1) RESPONDENTS' MOTION TO DISMISS (Doc. 31.) AND (2) PETITIONER'S MOTION (Doc. 35.)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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08cv01519

1 Petitioner filed a motion concerning his mail. (Doc. No. 35.) On December 4, 2009, the 2 magistrate judge issued a Report and Recommendation that the Court deny Respondents' 3 motion to dismiss and deny Petitioner's motion. (Doc. No. 19.) 4 The Court, pursuant to its discretion under Local Rule 7.1(d)(1), determines this matter

5 is appropriate for resolution without oral argument and submits the matter on the papers. For 6 the reasons set forth below, the Court adopts the R&R, denying Respondents' motion to 7 dismiss based on failure to exhaust and denying Petitioner's motion without prejudice. 8 9 Background On January 12, 2005, Petitioner was sentenced to a total term of eighty five years to life

10 for two counts of lewd and lascivious acts upon a minor child in violation of California Penal 11 Code 288(a), one count of indecent exposure in violation of California Penal Code 314(1), one 12 count of child annoyance with a previous felony conviction for lewd act upon a child in 13 violation of California Penal Code 647.6(c)(2), and two strikes prior. (Lodg. No. 4.) On May 14 30, 2006, Petitioner filed a petition for review in the California Supreme Court in which he 15 alleged numerous claims for ineffective assistance of trial counsel. (Lodg. No. 1.) On August 16 18, 2006, the California Supreme Court summarily denied the petition. (Lodg. No. 2.) On 17 August 1, 2007, Petitioner signed a state habeas petition, which was subsequently filed in San 18 Diego Superior Court on August 30, 2007. (Lodg. No. 3.) The Superior Court denied the 19 petition on October 29, 2007. (Id.) On January 22, 2008, Petitioner constructively filed a state 20 habeas petition in the California Court of Appeal, Fourth Appellate District, Division One. 21 (Lodg. No. 5.) The California Court of Appeal, Fourth Appellate District, Division One denied 22 the petition on May 8, 2008. (Lodg. No. 6.) On July 3, 2008, Petitioner constructively filed 23 a state habeas petition in the California Supreme Court. (Lodg. No. 9; Doc. No. 25, Ex. 2.) 24 On August 18, 2008, Petitioner constructively filed the current federal habeas petition. (Doc. 25 No. 1 at 36.) On January 7, 2009, Petitioner filed a second habeas petition in California 26 Supreme Court as case number S169564. (Doc. No. 29, Attach. 1.) Two weeks later, on 27 January 21, 2009, the California Supreme Court denied Petitioner's first petition, case number 28 S164972. (Doc. No. 25, Ex. 2.) On April 20, 2009, Petitioner filed a First Amended Petition
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1 with the Court. (Doc. No. 28.) Petitioner alleged seven grounds for relief in his First Amended 2 Petition: (1) prosecutorial misconduct and ineffective assistance of counsel; (2) the trial court 3 violated his right to a fair trial by instructing the jury that uncharged crimes evidence need only 4 be proved by a preponderance of evidence; (3) there was insufficient evidence to support his 5 convictions for committing lewd act on a child; (4) the trial court should have imposed a 6 sentence akin to the one prescribed or continuous sexual abuse of a child; (5) the trial court 7 erred in imposing excessive consecutive terms; (6) his sentence constitutes cruel and unusual 8 punishment; and (7) the cumulative effect of the trial errors was prejudicial. (Doc. No. 28.) 9 On June 24, 2009, the California Supreme Court denied Petitioner's second petition, case 10 number S169564. (Doc. No. 33, Ex. C.) 11 Discussion

12 I. Scope of Review and Applicable Legal Standard 13 A district court "may accept, reject, or modify, in whole or in part, the findings or

14 recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). If a party objects 15 to any portion of a magistrate judge's report, the district court "shall make a de novo 16 determination of those portions of the report . . . to which objection is made." Id. The district 17 court must make a de novo review of all conclusions of law, even if no objection is made. 18 Avratin v. Bermudez, 420 F. Supp.2d 1121, 1122-23 (S.D. Cal. 2006) (citing Barilla v. Irvin, 19 886 F.2d 1514, 1518 (9th Cir. 1989), overruled on other grounds). 20 Congress amended the Anti-Terrorism and Effective Death Penalty Act of 1996

21 ("AEDPA") 28 U.S.C. § 2254(d) to provide the following standard of review applicable to 22 state court decisions: 23 24 25 26 27 28 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim­ (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State
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court proceeding.

2 28 U.S.C. § 2254(d). 3 AEDPA imposes a one-year statute of limitations on petitions for writ of habeas corpus

4 filed by state prisoners. 28 U.S.C. § 2244(d). The one-year limitations period runs from the 5 latest of: 6 7 8 9 10 11 12 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the Constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

13 28 U.S.C. § 2244(d)(1). 14 II. Respondents' Motion to Dismiss 15 Respondents moved to dismiss the petition on the basis that Petitioner has failed

16 to exhaust all of his claims. Prisoners in state custody who wish to challenge in federal 17 habeas proceedings either the fact or length of their confinement first are required to 18 exhaust state judicial remedies by presenting the highest state court available with a fair 19 opportunity to rule on the merits of every claim they seek to raise in federal court. See 20 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). If available 21 state remedies have not been exhausted as to all claims, the district court must dismiss 22 the petition. Id. at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir.1988). A dismissal 23 solely for failure to exhaust is not a bar to returning to federal court after exhausting 24 available state remedies. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th 25 Cir.1995). 26 Respondents contend that Petitioner has not exhausted claims two through seven

27 because they are "currently pending in the California Supreme Court . . . and until [that 28 court] rules on . . . the petition, grounds two through seven are unexhausted." (Doc.
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1 No. 31.) See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (prior to 2 filing a habeas petition state prisoners must first exhaust state judicial remedies by 3 allowing the highest state court an opportunity to rule on the merits of every claim). 4 Respondents argue the petition should be dismissed without prejudice, or petitioner 5 should be afforded an opportunity to delete the unexhausted grounds and proceed on 6 the exhausted one. (Doc. No. 31.) In opposition, Petitioner asserts the California 7 Supreme Court ruled on the pending petition, and he submits a copy of the order. (Doc. 8 No. 33, Ex. C.) The California Supreme Court denied the petition on June 24, 2009, 9 only a few days after Respondent filed this Motion to Dismiss. (Doc. No. 33, Ex. C.) 10 After reviewing Petitioner's California Supreme Court petition, case number

11 S169564, the Court concludes that Petitioner has exhausted all of his federal claims by 12 presenting all his First Amended Petition claims to the California Supreme Court. 13 (Doc. No. 29, Attach. 1.) Accordingly, the Court denies Respondents' motion to 14 dismiss for failure to exhaust. 15 III. Petitioner's Motion 16 Petitioner alleges prison officials violated his constitutional rights by interfering

17 with the processing of his legal mail. (Doc. No. 35.) Petitioner's motion challenges 18 Petitioner's conditions of confinement and is properly brought in a civil rights 19 complaint under 42 U.S.C. § 1983. See Wilwording v. Swanson, 404 U.S. 249, 251 20 (1971) (per curiam), overruled on other grounds by Woodford v. Ngo, 548 U.S. 81 21 (2006). Although the Court has discretion to convert habeas petitions to prisoner civil 22 rights complaints, the circumstances are not appropriate for use of such discretionary 23 power. Id. at 251. Most of Petitioner's claims are appropriate for habeas review, and 24 he has not satisfied either the filing fee or exhaustion requirements for bringing a civil 25 rights complaint. See 28 U.S.C. §§ 1914(a) & 1915(b)(1) (filing fee of $350 for civil 26 rights complaints or qualification to proceed in forma pauperis); 42 U.S.C. § 1997e 27 (civil rights complaints may not be made in federal court until all prison administrative 28 remedies are exhausted). Additionally, the Court notes that it denied Respondents'
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1 motion to dismiss after concluding Petitioner has satisfied the exhaustion requirements 2 with regard to his habeas petition. Therefore, the Court denies without prejudice 3 Petitioner's motion concerning his mail. 4 5 6 7 8 9 Conclusion For the reasons set forth above, the Court ORDERS the following: (1) The Court ADOPTS the Report and Recommendation. (2) The Court DENIES Respondents' motion to dismiss. (3) The Court DENIES WITHOUT PREJUDICE Petitioner's motion. IT IS SO ORDERED.

10 DATED: January 25, 2010 11 12 13 COPIES TO: 14 All parties of record. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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_________________________________ MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT