(HC) Griffin v. Price ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEXTER LAWRENCE GRIFFIN, ) Case No.: 1:21-cv-01516-JLT (HC) ) 12 Petitioner, ) ORDER TO SHOW CAUSE WHY PETITION ) SHOULD NOT BE DISMISSED FOR FAILURE 13 v. ) TO EXHAUST STATE REMEDIES ) 14 BRANDON PRICE, Warden, ) [THIRTY-DAY DEADLINE] 15 Respondent. ) ) 16 ) 17 On September 29, 2021, Petitioner filed the instant petition for writ of habeas corpus in United 18 States District Court for the Northern District of California. (Doc. 1.) The Northern District 19 transferred the petition to this Court on October 8, 2021. (Doc. 4.) The petition appears to be 20 unexhausted; therefore, Petitioner will be ordered to show cause why it should not be dismissed 21 without prejudice. 22 I. DISCUSSION 23 A. Preliminary Review of Petition 24 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary 25 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 26 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 27 the district court. . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory 28 Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, 1 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 2 answer to the petition has been filed. 3 B. Exhaustion 4 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 5 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 6 exhaustion doctrine is based on comity to the state court and gives the state court the initial 7 opportunity to correct the state’s alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 8 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 9 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 10 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 11 Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court was given a full 12 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 13 claim’s factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 14 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 15 Additionally, the petitioner must have specifically told the state court that he was raising a 16 federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme 17 Court reiterated the rule as follows: 18 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 in 19 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 courts are to 20 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 claims under the United 21 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 guaranteed by the Fourteenth 22 Amendment, he must say so, not only in federal court, but in state court. 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 26 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-evident,” Gatlin v. Madding, 27 189 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 state law on the same considerations that 28 would control resolution of the claim on federal grounds, see, e.g., Hiivala v. Wood, 195 1 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 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 Petitioner indicates that he previously filed challenges in the Sacramento County Superior 8 Court, the United States District Court for the Eastern District of California, and the United States 9 Court of Appeals for the Ninth Circuit. (See Doc. 1 at 3-4.) However, if Petitioner has not sought 10 relief in the California Supreme Court, the Court cannot proceed to the merits of his claim. 28 U.S.C. 11 § 2254(b)(1). Because it is unclear whether Petitioner has presented his claim for federal relief to the 12 highest state court, the Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th 13 Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). If the Petitioner has presented his 14 claim to the California Supreme Court, Petitioner must indicate this to the Court. The Court cannot 15 consider a petition that is unexhausted. Rose v. Lundy, 455 U.S. 509, 521-22 (1982). 16 II. ORDER 17 Accordingly, within thirty days the Court ORDERS Petitioner to show cause why the petition 18 should not be dismissed for failure to exhaust state remedies. 19 20 IT IS SO ORDERED. 21 Dated: October 22, 2021 _ /s/ Jennifer L. Thurston 22 CHIEF UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28