(HC) Howell v. Black ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RONNIE E. HOWELL, ) Case No.: 1:20-cv-00731-JLT (HC) ) 12 Petitioner, ) ORDER TO SHOW CAUSE WHY PETITION ) SHOULD NOT BE DISMISSED FOR FAILURE 13 v. ) TO EXHAUST STATE REMEDIES ) 14 WARDEN, ) [THIRTY-DAY DEADLINE] 15 Respondent. ) ) 16 ) 17 Petitioner filed a Petition for Writ of Habeas Corpus on May 12, 2020 in the United States 18 District Court for the Northern District of California. (Doc. 1.) The Northern District transferred the 19 petition to this Court on May 26, 2020. (Doc. 4.) The petition appears to be unexhausted; therefore, 20 Petitioner will be ordered to show cause why it should not be dismissed without prejudice. 21 I. DISCUSSION 22 A. Preliminary Review of Petition 23 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary 24 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 25 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 26 the district court. . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory 27 Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, 28 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 1 answer to the petition has been filed. 2 B. Exhaustion 3 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 4 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 5 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 U.S. 7 722, 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 with a 9 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 10 Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court was given a full 11 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 12 claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 13 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 18 remedies requires that petitioners “fairly present” federal claims to the state courts in order to give the State the “opportunity to pass upon and correct alleged violations of the 19 prisoners' federal rights” (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they 20 must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a 21 state court trial denied him the due process of law 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 claims were 25 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 that the petitioner must 26 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-evident," Gatlin v. Madding, 189 F.3d 27 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7 . . . (1982)), or the underlying claim would be decided under state law on the same considerations that would 28 control resolution of the claim on federal grounds, see, e.g., Hiivala v. Wood, 195 F3d 1 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 the 3 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 law is. 4 5 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons v. 6 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 Supreme 9 Court, the Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); 10 Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The Court cannot consider a petition that is 11 unexhausted. Rose v. Lundy, 455 U.S. 509, 521-22 (1982). 12 II. ORDER 13 Accordingly, within thirty days the Court ORDERS Petitioner to show cause why the petition 14 should not be dismissed for failure to exhaust state remedies. 15 16 IT IS SO ORDERED. 17 Dated: June 15, 2020 /s/ Jennifer L. Thurston 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28