(HC) Zack Sanchez v. Becerra ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ZACK SANCHEZ, Case No. 1:20-cv-00823-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR FAILURE TO 13 v. EXHAUST CLAIM 14 XAVIER BECERRA, OBJECTIONS DUE IN THIRTY DAYS 15 Respondent. ECF No. 1 16 ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO DISTRICT JUDGE 17 18 Petitioner Zack Sanchez, a state prisoner without counsel, seeks a writ of habeas corpus 19 under 28 U.S.C. § 2254. ECF No. 1. This matter is before us for preliminary review under Rule 20 4 of the Rules Governing Section 2254 Cases. Under Rule 4, a district court must dismiss a 21 habeas petition if it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. 22 Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th 23 Cir. 1998). Courts have “an active role in summarily disposing of facially defective habeas 24 petitions” under Rule 4. Ross v. Williams, 896 F.3d 958, 968 (9th Cir. 2018) (citation omitted). 25 Petitioner seeks relief from his convictions of attempted murder, assault with a firearm, 26 discharging a firearm, and exhibiting a firearm. See ECF No. 1 at 1. On June 24, 2020, we 27 ordered petitioner to show cause why his petition should not be dismissed for failure to exhaust 28 1 one of his claims. ECF No. 2. Petitioner has not responded to our order to show cause, and the 2 time for doing so has passed. Accordingly, we recommend that the petition be dismissed. 3 Discussion 4 A petitioner in state custody proceeding with a petition for a writ of habeas corpus must 5 exhaust state judicial remedies. See 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on 6 comity and gives the state court the initial opportunity to correct its alleged constitutional 7 deprivations. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 8 518 (1982). A petitioner can satisfy the exhaustion requirement by providing the highest state 9 court with a full and fair opportunity to consider each claim before presenting it to the federal 10 court. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 11 365 (1995). 12 Here, the California Court of Appeal affirmed petitioner’s conviction on direct appeal and 13 the California State Supreme Court denied review. ECF No. 1 at 2-3. Petitioner also sought 14 habeas review from the state superior court. Id. at 7-8. In the instant petition, petitioner claims 15 that the trial court erred when it: (1) admitted a video into evidence that the prosecutor failed to 16 present to the defense prior to trial; (2) admitted Facebook comments that said “kill people”; and 17 (3) wrongfully prevented one of his witnesses from testifying at trial. Id. at 6-8. Although 18 petitioner stated that he exhausted his first and second claims before the state courts, he stated that 19 he has not exhausted his third claim. Id. at 9. 20 When a habeas petition presents both exhausted and unexhausted claims, as appears to be 21 the case here, the petition is considered “mixed.” See Dixon v. Baker, 847 F.3d 714, 718 (9th Cir. 22 2017). Unless a petition is stayed and held in abeyance for the purposes of exhaustion, “[f]ederal 23 courts must dismiss habeas petitions that contain both exhausted and unexhausted claims.” Rose 24 v. Lundy, 455 U.S. 509, 522 (1982). Accordingly, we recommend that the petition be dismissed.1 25 1 Petitioner may seek a stay and abeyance of his petition in his objections to these findings and recommendations. See Butler v. Long, 752 F.3d 1177, 1180 (9th Cir. 2014). The purpose of a 26 stay and abeyance is to give a petitioner the opportunity to exhaust his claims in state court before 27 presenting them in federal court. See Dixon, 847 F.3d at 718-20. In our order to show cause, we explained the two procedures for staying a petition that may be available while a petitioner 28 exhausts his claims in state court. ECF No. 2 at 2-4; see Rhines v. Weber, 544 U.S. 269, 277 1 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 Section 2254 Cases 5 requires a District Court to issue or deny a certificate of appealability when entering a final order 6 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 7 1268, 1270 (9th Cir. 1997). Where, as here, the court denies habeas relief on procedural grounds 8 without reaching the underlying constitutional claims, the court should issue a certificate of 9 appealability “if jurists of reason would find it debatable whether the petition states a valid claim 10 of the denial of a constitutional right and that jurists of reason would find it debatable whether the 11 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 12 “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of 13 the case, a reasonable jurist could not conclude either that the district court erred in dismissing the 14 petition or that the petitioner should be allowed to proceed further.” Id. Here, reasonable jurists 15 would not find our conclusion debatable or conclude that petitioner should proceed further. Thus, 16 the court should decline to issue a certificate of appealability. 17 Findings and Recommendations 18 We recommend that the petition be dismissed, ECF No. 1, and that the court decline to 19 issue a certificate of appealability. We submit the findings and recommendations to the U.S. 20 District Court judge who will be assigned to the case under 28 U.S.C. § 636(b)(1)(B) and Rule 21 304 of the Local Rules of Practice for the United States District Court, Eastern District of 22 California. Within thirty days of the service of the findings and recommendations, petitioner may 23 file written objections to the findings and recommendations with the court and serve a copy on all 24 parties. That document must be captioned “Objections to Magistrate Judge’s Findings and 25 (2005); Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2002). We ordered petitioner to notify the court whether he wished to: (1) seek a stay and abeyance under Rhines; (2) proceed with a 26 stay under the Kelly procedure; or (3) proceed with his exhausted claims only. ECF No. 2 at 4. If 27 petitioner wishes to proceed under one of these options, he should notify the court in his objections to these findings and recommendations. Petitioner is forewarned that if he seeks a stay 28 under Rhines, he must show, inter alia, good cause for his failure to exhaust his claim. Id. at 2-4. WAS YVYUOLIUINMY INE VET Sr POR OPE EIEN TAY ST UT tT 1 | Recommendations.” The assigned district judge will then review the findings and 2 | recommendations under 28 U.S.C. § 636(b)(1)(C). 3 | Order 4 The clerk of court is directed to assign this case to a district judge for the purposes of 5 || reviewing these findings and recommendations. 6 7 IT IS SO ORDERED. g : —N prssann — Dated: _ August 11, 2020 9 UNI STATES MAGISTRATE JUDGE 10 11 | No. 206. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28