(HC) Delacruz v. Sherman ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GUSTAVO DELACRUZ, Case No. 1:19-cv-00850-JLT (HC) 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED 13 v. FOR FAILURE TO EXHAUST STATE REMEDIES 14 STU SHERMAN, Warden, [TWENTY-ONE DAY DEADLINE] 15 Respondent. 16 17 Petitioner filed a habeas petition on June 19, 2019, challenging his 2013 conviction in 18 Bakersfield County Superior Court of vehicular manslaughter. The petition appears to be 19 unexhausted; therefore, Petitioner will be ordered to show cause why it should not be dismissed 20 without prejudice. 21 DISCUSSION 22 A. Preliminary Review of Petition 23 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 24 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 25 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 26 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 27 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 28 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 1 2001). 2 B. Exhaustion 3 A petitioner who is in state custody and wishes to collaterally challenge his conviction by 4 a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). 5 The exhaustion doctrine is based on comity to the state court and gives the state court the initial 6 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 7 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 8 A petitioner can satisfy the exhaustion requirement by providing the highest state court 9 with a full and fair opportunity to consider each claim before presenting it to the federal court. 10 Duncan v. Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court 11 was given a full and fair opportunity to hear a claim if the petitioner has presented the highest 12 state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney 13 v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 14 Additionally, the petitioner must have specifically told the state court that he was raising a 15 federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme 16 Court reiterated the rule as follows: 17 In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners “fairly present” federal claims to the state courts 18 in order to give the State the “opportunity to pass upon and correct alleged violations of the prisoners' federal rights” (some internal quotation marks omitted). If state 19 courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting 20 claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law 21 guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 22 23 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 24 Our rule is that a state prisoner has not “fairly presented” (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those 25 claims were based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held 26 that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is “self- 27 evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7 . . . (1982)), or the underlying claim would be decided under 28 state law on the same considerations that would control resolution of the claim on 1 federal grounds, see, e.g., Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . . 2 In Johnson, we explained that the petitioner must alert the state court to the fact that 3 the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal 4 law is. 5 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons 6 v. Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001). 7 It appears Petitioner is attempting to bring one claim of ineffective assistance of counsel. 8 Because it appears Petitioner has not presented his claims for federal relief to the California 9 Supreme Court, the Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 10 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The Court cannot consider a 11 petition that is unexhausted. Rose v. Lundy, 455 U.S. 509, 521-22 (1982). 12 ORDER 13 Accordingly, within twenty-one days the Court ORDERS Petitioner to show cause why 14 the petition should not be dismissed for failure to exhaust state remedies. 15 IT IS SO ORDERED. 16 17 Dated: November 7, 2019 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28