Bovensiep v. Dean Borders

Filing 18

ORDER adopting 17 Report and Recommendation; denying 14 Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus. Signed by Judge Gonzalo P. Curiel on 3/19/2018. (All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THOMAS DANIEL BOVENSIEP,

Case No.: 17-cv-00074-GPC-NLS

Petitioner,

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ORDER ADOPTING REPORT AND
RECOMMENDATION [Doc. No. 17]
AND DENYING RESPONDENT’S
MOTION TO DISMISS PETITION
FOR WRIT OF HABEAS CORPUS
[Doc. No. 14]

v.
DEAN BORDERS,
Respondent.

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Thomas Daniel Bovensiep, a state prisoner proceeding pro se, filed the operative
First Amended Petition for Writ of Habeas Corpus (“FAP”) pursuant to 28 U.S.C. § 2254
on March 20, 2017. (ECF No. 10.) The FAP essentially contains two sections. The first
is the ubiquitous § 2254 Form used by prisoners to assert habeas claims (ECF No. 10 (the

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“Form” section)), and the second is a document labeled “Attachment II” (ECF No. 10-1

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(the “Attachment” section)). In the Form section of the FAP, two claims are raised: (1) a

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violation of Bovensiep’s constitutional speedy trial rights, and (2) a violation of

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Bovensiep’s right to due process under the Sixth Amendment “and fundamental

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fairness.” (ECF No. 10 at 6–7.) In the Attachment II section of the FAP, Bovensiep

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discusses issues relating to destruction of evidence, selective prosecution, and obstruction
of justice. (ECF No. 11.)

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On August 31, 2017, Respondent filed a motion to dismiss the FAP. (ECF No.

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14.) Respondent contends that while Bovenseip exhausted the claims in the Form section

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of the FAP, he did not exhaust the claims asserted in the Attachment section of the FAP.

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As a result, Respondent argues, the FAP should be dismissed as “mixed.” Bovensiep

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filed a response in opposition on September 27, 2017, clarifying that he is alleging just

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the claims in the Form section of the FAP. (ECF No. 16.)

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On January 10, 2018, Magistrate Judge Nita L. Stormes issued a report and

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recommendation (the “Report”) recommending that this Court deny Respondent’s motion

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to dismiss in light of Bovenseip’s clarification. (ECF No. 12.) Judge Stormes’s order

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instructed that objections to the Report must be filed by January 24, 2018. (Id. at 8.)

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Neither party filed any objections.

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After careful consideration of the pleadings and relevant exhibits submitted and for

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the reasons set forth below, this Court ADOPTS the Report and DENIES Respondent’s

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motion to dismiss.

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DISCUSSION
I.

Legal Standard
Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b) set forth this Court’s

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duties in connection with a report from a Magistrate Judge. The Court “may accept,

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reject or modify, in whole or in part, the findings and recommendations made by the

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magistrate.” 28 U.S.C. § 636(b). This Court need not review de novo portions of the

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Report to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13

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(9th Cir. 2005). Because neither party filed objections to the Report, this Court may

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assume the correctness of Judge Stormes’s findings of fact and decide the motion on the

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applicable law. Campbell v. U.S. Dist. Ct. for the N. Dist. Of California, 501 F.2d 196,

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206 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001).

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II.

Analysis
Judge Stormes concluded that the motion to dismiss should be denied because, in

light of Bovensiep’s clarification, only the claims in the Form section of the FAP remain,
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and those claims were exhausted. (ECF No. 14.) To present a claim in a federal petition

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for writ of habeas corpus, the petitioner must first exhaust all state remedies. 28 U.S.C.

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§ 2254(b)-(c); Baldwin v. Reese, 541 U.S. 27, 29 (2004). Motivated by the preservation

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of federal-state comity, this requirement grants state courts the “initial ‘opportunity to

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pass upon and correct’ alleged violations of its prisoners' federal rights.” Picard v.

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Connor, 404 U.S. 270, 275 (1971) (quoting Wilwording v. Swenson, 404 U.S. 249, 250

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(1971)) (per curiam)). To exhaust a claim, a petition must present “both the operative

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facts and the federal legal theory on which his claim is based.” Kelly v. Small, 315 F.3d

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1063, 1066 (9th Cir. 2002) overruled on other grounds by Robbins v. Carey, 481 F.3d

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1134, 1149 (9th Cir. 2007). To exhaust all state remedies, a petitioner must fairly present

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all claims to the highest state court. McQuown v. McCartney, 795 F.2d 807, 809 (9th

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Cir.1986). A California prisoner must present his claim to the Supreme Court of

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California on direct review or collateral review. See Reiger v. Christensen, 789 F.2d

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1425, 1427 (9th Cir. 1986).

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Respondent does not contest the adequacy of Bovensiep’s presentation to the

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California Supreme Court as to the two claims listed in the Form section of the FAP, but

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rather contends Bovensiep has added additional unexhausted claims in the Attachment

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section. Respondent describes the FAP as asserting four grounds: (1) “he was prejudiced

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by the pre-charging delay because the delay caused the documents in his storage unit to

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be destroyed by the storage facility”; (2) “the prosecution failed to gather exculpatory

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evidence form his storage unit before the documents were destroyed”; (3) “the

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prosecution singled him out for prosecution while ignoring the crimes committed by the

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prosecution witnesses and filed charges against him it knew were false”; and (4) the

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prosecutor obstructed justice.” (ECF No. 14-1 at 2.) The two claims asserted in the

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Form section of the FAP fall within the first ground; the three claims included in the

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Attachment section of the FAP fall within the second, third, and fourth grounds.

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Respondent states that while the first ground “appears to correspond to the claim raised

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on discretionary review in the California Supreme Court,” the second, third, and fourth

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grounds were not. (Id. at 4.)

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In his response to the motion, Bovensiep clarifies that “[g]rounds two, three, and

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four, discussed by [counsel for Respondent] are not charges in the First Amended Petition

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and the petitioner denies these are even included in the First Amended Petition for Writ

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of Habeas Corpus.” (ECF No. 16 at 6.) In other words, assuming that Bovensiep

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originally intended to assert claims based on the three grounds raised in the Attachment

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section of the FAP, he has now abandoned those claims. In light of this clarification—

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and Respondent’s concession that the remaining ground was argued to the California

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Supreme Court—the Court finds the FAP to be fully exhausted.
Because the Court agrees with Judge Stormes’s conclusion that Bovensiep has

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abandoned his unexhausted claims, and the claims that remain have been exhausted, the

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Court ADOPTS the Report and Recommendation.

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CONCLUSION AND ORDER

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For the reasons set forth above, IT IS HEREBY ORDERED:

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1. The finding and conclusions of Judge Stormes presented in the Report (Doc. No.
17 are ADOPTED in their entirety;
2. Respondent’s Motion to Dismiss (Doc. No. 14) is DENIED.

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Dated: March 19, 2018

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