(HC) Barnes v. California Department Corrections Director ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTOINE BARNES, Case No. 1:20-cv-00836-NONE-JDP 12 Petitioner, ORDER VACATING JUNE 23, 2020 FINDINGS AND RECOMMENDATIONS 13 v. ECF No. 9 14 HANFORD SUPERIOR COURT JUDGE ROBERTS, FINDINGS AND RECOMMENDATIONS TO 15 DISMISS PETITION FOR FAILURE TO Respondent. EXHAUST CLAIMS AND TO DENY 16 REQUEST FOR INJUNCTIVE RELIEF 17 OBJECTIONS DUE IN THIRTY DAYS 18 ECF Nos. 1, 13 19 20 Petitioner Antoine Barnes, a state prisoner without counsel, seeks a writ of habeas corpus 21 under 28 U.S.C. § 2254. ECF No. 1. Petitioner argues, in two related claims, that the California 22 Department of Corrections and Rehabilitation (“CDCR”) violated his Eighth Amendment right to 23 be free from cruel and unusual punishment when it failed to award him certain custody credits 24 under California law.1 Id. at 3-4. This matter is before us for preliminary review under Rule 4 of 25 the Rules Governing Section 2254 Cases. Under Rule 4, a district court must dismiss a habeas 26 1 Petitioner recently sought habeas relief in this court on these same claims. See Barnes v. 27 Roberts, No. 1:20-cv-00454-DAD-SKO (E.D. Cal. May 27, 2020). Because that petition was dismissed without prejudice for failure to exhaust, the instant petition is not considered “second 28 or successive.”. See Slack v. McDaniel, 529 U.S. 473, 487 (2000). 1 petition if it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. 2 Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th 3 Cir. 1998). Because petitioner has failed to exhaust his claims before the state courts, we 4 recommend that the petition be dismissed without prejudice—allowing refiling if and when 5 petitioner’s claims have been exhausted. We also recommend that petitioner’s request for 6 injunctive relief,2 ECF No. 13, be denied. 7 I. Discussion 8 a. Failure to Exhaust Claims 9 On June 23, 2020, we recommended that the court dismiss the petition. ECF No. 9 10 (findings and recommendations). At that time, petitioner was seeking habeas relief in the Kings 11 County Superior Court on the same claims raised in the instant petition. Id. at 5; In re: 12 Application of: Antoine D Barnes for Writ of Habeas Corpus, No. 20W-0072A (Kings Cnty. 13 Super. Ct. June 24, 2020). Considering the pendency of the state habeas case, we recommended 14 that the court abstain from exercising jurisdiction over the case and dismiss the petition without 15 prejudice—permitting refiling if and when petitioner’s claims were exhausted. See ECF No. 9; 16 Younger v. Harris, 401 U.S. 37, 44 (1971). On June 24, 2020, petitioner’s superior court habeas 17 petition was denied. See In re: Application of: Antoine D Barnes for Writ of Habeas Corpus, No. 18 20W-0072A. Because his state habeas petition is no longer pending, we will vacate our June 23, 19 2020 findings and recommendations. ECF No. 9. 20 However, petitioner faces another obstacle: he has failed to exhaust his claims before the 21 state courts. The exhaustion doctrine, which requires a petitioner in state custody to exhaust state 22 judicial remedies before proceeding with a federal habeas petition, is based on comity and gives 23 the state courts the initial opportunity to correct alleged constitutional deprivations. See 28 24 U.S.C. § 2254(b)(1); Coleman v. Thompson, 501 U.S. 722, 731 (1991). A petitioner can satisfy 25 the exhaustion requirement by providing the highest state court with a full and fair opportunity to 26 27 2 Petitioner’s request for injunctive relief is supported by an affidavit, ECF No. 14, which the 28 court has taken into consideration. 1 consider each claim before presenting it to the federal court. See O’Sullivan v. Boerckel, 526 U.S. 2 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 365 (1995). 3 Here, petitioner states that he has not sought review of his claims before either the 4 intermediate or supreme state courts.3 ECF No. 1 at 5. Although petitioner has submitted proof 5 of a formal grievance that he submitted to his jail, this grievance does not exhaust his claims. 6 ECF No. 11. Exhaustion requires that petitioner present his claims to the appropriate state courts. 7 See O’Sullivan, 526 U.S. at 845. Therefore, his claims are unexhausted. Generally, federal 8 courts must dismiss habeas petitions that contain unexhausted claims.4 See Rose v. Lundy, 455 9 U.S. 509, 522 (1982). Therefore, we recommend that the petition be dismissed without prejudice 10 to refiling after petitioner has exhausted his claims. 11 b. Motion for Injunctive Relief 12 Petitioner moves for an “immediate restraining order” authorizing his immediate transfer 13 to San Quentin prison, or, in the alternative, directing that he be released on parole. ECF Nos. 13, 14 14. A petitioner seeking preliminary injunctive relief, either in the form of a temporary 15 restraining order or a preliminary injunction, must establish that he is likely to succeed on the 16 merits, that he is likely to suffer irreparable harm in the absence of such relief, that the balance of 17 3 Moreover, we have reviewed the California Court’s Appellate Courts Case Information listing 18 for the petitioner and take judicial notice of it per Rule 201 of the Federal Rules of Evidence. See 19 California Department of Corrections and Rehabilitation Inmate Locator, https://appellatecases.courtinfo.ca.gov/search.cfm?dist=0 (search “Search by Party” for “Antoine 20 Barnes”). Petitioner has neither sought relief in the California Court of Appeal nor the California Supreme Court for the conviction and sentence he challenges in the instant petition. 21 4 Alternatively, petitioner may seek to avoid dismissal through seeking a stay and abeyance of his petition under the Rhines procedure. See Rhines v. Weber, 544 U.S. 269, 277 (2005); Mena v. 22 Long, 813 F.3d 907, 912 (9th Cir. 2016). However, petitioner may find it unnecessary to do so 23 considering the procedural history of his state cases. Petitioner challenges CDCR’s ongoing calculation of his custody credits in relation to his March 24, 2020 criminal sentence. His state 24 superior court habeas petition was denied mere weeks ago and petitioner must now seek relief before the state appellate and supreme courts. ECF No. 1 at 2. Considering AEDPA’s one-year 25 statute of limitations and the availability of statutory tolling during the pendency of state collateral proceedings, petitioner, acting diligently, will likely be able to file a fully exhausted 26 federal petition in a timely manner. See 28 U.S.C. § 2244(d). However, if petitioner wishes to 27 seek a stay under Rhines, he must show good cause for his failure to exhaust his claims in state court, that his claims are not plainly meritless, and that he has not engaged in abusive litigation 28 tactics. See Rhines, 544 U.S. at 278. 1 equities tips in his favor, and that an injunction is in the public interest. See Winter v. Natural 2 Res. Def. Council, 555 U.S. 7, 20 (2008). 3 Petitioner has failed to make the showing required for injunctive relief. First, he has not 4 demonstrated a likelihood of success on the merits of his underlying claims. To state a 5 cognizable claim for federal habeas relief, petitioner must claim that he “is in custody in violation 6 of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Here, although 7 petitioner claims that CDCR is violating his Eighth Amendment rights, he has failed to cite to any 8 “clearly established federal law” that supports his arguments. Id. § 2254(d). Rather, he claims 9 that CDCR has violated state law.5 Second, petitioner has not shown that he will suffer 10 irreparable harm absent injunctive relief. Although petitioner states that he is being discriminated 11 against in his current place of incarceration, these claims are vague and conclusory. Third, 12 petitioner has not shown how the balance of equities tips in his favor. Petitioner has neither 13 provided proof that he is currently eligible for parole nor cited to any legal proposition supporting 14 his request to move to San Quentin prison. See Schulze v. Fed. Bureau of Prisons, No. 19-00669 15 JAO-WRP, 2019 U.S. Dist. LEXIS 218643, at *6 (D. Haw. Dec. 20, 2019) (noting that “a 16 prisoner has no right to incarceration in a particular place”). Fourth, petitioner has not shown 17 how the relief requested is in the public interest. (San Quentin prison is currently experiencing a 18 large outbreak of COVID-19—a new prisoner entering the facility likely poses risks to both that 19 prisoner and the general prison population.6) And petitioner has failed to demonstrate how the 20 public interest would be served by his early release on parole. Accordingly, we recommend that 21 petitioner’s request for injunctive relief be denied.7 22 5 We take no position on whether petitioner could state meritorious claims in a future, fully- 23 exhausted petition with appropriate citations to clearly established federal law. 6 See California Department of Corrections and Rehabilitation, 24 https://www.cdcr.ca.gov/covid19/san-quentin-state-prison-response/ (last visited July 30, 2020) (“[In response to COVID-19,] CDCR has halted the transfer of any inmates into or out of San 25 Quentin and any state prison except for emergencies.”). 7 Petitioner also submitted a letter to the Clerk of Court describing his two civil rights actions 26 pending in this court, both of which challenge the conditions of his confinement. ECF No. 14 at 27 3-4; see Barnes v. Blackburn, et al., No. 1:20-cv-00333-DAD-EPG (E.D. Cal. Mar. 4, 2020); Barnes v. Van Ness, et al., No. 1:20-cv-00625-NONE-EPG (E.D. Cal. May 1, 2020). To the 28 extent petitioner seeks relief from the same circumstances as those contained in his pending civil 1 II. Certificate of Appealability 2 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 3 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 4 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a 5 district court to issue or deny a certificate of appealability when entering a final order adverse to a 6 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 7 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial 8 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires 9 the petitioner to show that “jurists of reason could disagree with the district court’s resolution of 10 his constitutional claims or that jurists could conclude the issues presented are adequate to 11 deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v. 12 McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the 13 denial of a constitutional right. Thus, we recommend that the court not issue a certificate of 14 appealability. 15 III. Findings and Recommendations 16 We recommend that the court dismiss the petition without prejudice, ECF No. 1, deny 17 petitioner’s motion for injunctive relief, ECF No. 13, and decline to issue a certificate of 18 appealability. Under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for 19 the United States District Court, Eastern District of California, we submit the findings and 20 recommendations to the U.S. District Court judge presiding over the case. Within thirty days of 21 the service of the findings and recommendations, any party may file written objections to the 22 23 rights actions, he must file a motion for relief in those cases. If petitioner wishes to raise new, unrelated civil rights claims, he should do so in a new civil rights action—such claims are not 24 cognizable on habeas review. See Muhammad v. Close, 540 U.S. 749, 750 (2004) (explaining that requests for relief turning on circumstance of confinement should be presented in a civil 25 rights action, not a habeas action). Additionally, petitioner seeks assistance filing a “full name, face, body picture patent.” ECF No. 14 at 4. Petitioner’s request for this assistance is not 26 cognizable here—habeas relief is limited to claims challenging the “validity of any confinement 27 or to particulars affecting its duration.” Muhammad, 540 U.S. at 750. Finally, petitioner is advised that any future requests for relief should be presented as motions to the court. No relief 28 will be granted based on letters addressed to the Clerk of Court. wOAOe 4: OU UV VMOU IN INE VE MVOC tw PO Vote OY VV 1 | findings and recommendations. That document must be captioned “Objections to Magistrate 2 | Judge’s Findings and Recommendations.” The presiding district judge will then review the 3 | findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 4 IV. Order 5 The June 23, 2020 findings and recommendations, ECF No. 9, are vacated. 6 7 IT IS SO ORDERED. y 30, —N prssann — Dated: _ July 30, 2020 9 UNI STATE AGISTRATE JUDGE 10 11 | No. 206. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28