(HC) Vasquez v. Robertson ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICOLAS VASQUEZ, No. 2:21-cv-00726 DB P 12 Petitioner, 13 v. ORDER 14 JIM ROBERTSON, Warden, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee for this action. 19 Petitioner challenges the results of a 2018 disciplinary hearing appeal at Pelican Bay State 20 Prison. (ECF No. 1 at 3.) Petitioner claims his due process rights under the Fourteenth 21 Amendment were violated when his “third level appeal” was conducted by staff with “knowledge 22 of the inmates misconduct.” (Id.) Presently before the court is the petition for screening. (ECF 23 No. 1.) Petitioner will be ordered to show cause why his petition should not be dismissed for 24 failure to exhaust state court remedies. 25 SCREENING 26 I. Screening Requirement 27 Under Rule 4 of the Rules Governing Section 2254 Cases, this court is required to conduct 28 a preliminary review of all petitions for writ of habeas corpus filed by state prisoners. Pursuant to 1 Rule 4, this court must summarily dismiss a petition if it “plainly appears from the petition and 2 any attached exhibits that the petitioner is not entitled to relief in the district court.” 3 II. Exhaustion 4 There is no question that the exhaustion of state court remedies is a prerequisite to the 5 granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). “Under the exhaustion 6 requirement, a habeas petitioner challenging a state conviction must first attempt to present his 7 claim in state court.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also O’Sullivan v. 8 Boerckel, 526 U.S. 838, 845 (1999) (“the exhaustion doctrine is designed to give the state courts 9 a full and fair opportunity to resolve federal constitutional claims before those claims are 10 presented to the federal courts”). A petitioner satisfies the exhaustion requirement by providing 11 the highest state court with a full and fair opportunity to consider all claims before presenting 12 them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 13 F.2d 1983, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). For a California prisoner to 14 exhaust, he must present his claims to the California Supreme Court on appeal in a petition for 15 review or post-conviction in a petition for a writ of habeas corpus in which he adequately 16 describes the federal Constitutional issue that he asserts was denied. See Gatlin v. Madding, 189 17 F.3d 882, 888 (9th Cir. 1999). 18 Although non-exhaustion of remedies has been viewed as an affirmative defense, it is the 19 petitioner’s burden to prove that state judicial remedies were properly exhausted. 28 U.S.C. § 20 2254(b)(1)(A); Darr v. Burford, 339 U.S. 200, 218-19 (1950), overruled in part on other grounds 21 by Fay v. Noia, 372 U.S. 391 (1963); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). 22 The court may, but is not required to, raise the issue of exhaustion sue sponte. See Aiken v. 23 Spalding, 841 F.2d 881, 883 (9th Cir. 1988) (per curium); Simmons v. Blodgett, 110 F.3d 39, 41 24 (9th Cir. 1997). Failure to present claims for federal relief to the California Supreme Court will 25 result in dismissal. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jimenez v. Rice, 26 276 F.3d 478, 481 (9th Cir. 2001). The authority of a court to hold a mixed petition in abeyance 27 pending exhaustion of the unexhausted claims has not been extended to petitions that contain no 28 //// 1 exhausted claims. Raspberry, 448 F.3d at 1154; see also Rose v. Lundy, 455 U.S. 509, 521-22 2 (1982) (The court cannot consider a petition that has not been exhausted). 3 Upon review of the instant petition, it appears petitioner has not presented his claims to 4 the highest state court, the California Supreme Court. Petitioner does state that “state and 5 supreme courts piggy backed on superior court decision to deny petition of habeas corpus.” (ECF 6 No. 1 at 5.) However, petitioner indicated on his petition form that he did not seek review in the 7 California Supreme Court and, accordingly, did not provide information regarding any appeal. 8 (Id.) As such, petitioner appears to have stated that his claims are not exhausted. 9 In an amended petition, petitioner the must inform the court if, in fact, his claims have 10 been presented to the California Supreme Court, and if possible, provide the court with a copy of 11 the petition filed in the California Supreme Court along with a copy of any ruling made by the 12 California Supreme Court. If petitioner has not exhausted any of his claims, the petition must be 13 dismissed without prejudice for failure to exhaust state court remedies. 14 III. Sufficiency of Facts Alleged 15 The petition has not alleged sufficient facts for the court to determine if a response is 16 warranted. Rule 2 of the Rules Governing Section 2254 Cases provides that the petition: “shall 17 specify all the grounds for relief which are available to the petitioner and of which he has or by 18 the exercise of reasonable diligence should have knowledge and shall set forth in summary form 19 the facts supporting each of the grounds thus specified.” Rule 2(c), Rules Governing Section 20 2254 Cases. Petitioner must also clearly state the relief sought in the petition. Id. Additionally, 21 the Advisory Committee Notes to Rule 4 explains that “notice pleading is not sufficient, for the 22 petition is expected to state facts that point to a real possibility of constitutional error.” Advisory 23 Committee Notes to Rule 4; see Blackledge v. Allison, 431 U.S. 63, 75, n.7 (1977). 24 Petitioner states that his due process and equal protection rights were violated due to 25 Pelican Bay State Prison violating their regulations. (ECF No. 1 at 3.) These claims appear 26 related to the assignment of a prison staff member to petitioner’s disciplinary hearing. (Id.) 27 However, the petition does not state facts related to these claims. As such, the petition has not 28 stated “facts that point to a real possibility of constitutional error” and the court cannot determine 1 | if petitioner may be entitled to relief. Advisory Committee Notes to Rule 4; see Blackledge, 431 2 | U.S.at 75, n.7. 3 The petition fails to comply with Rule 2(c), Rules Governing Section 2254 Cases. 4 | Therefore, the petition is dismissed with leave to amend. Rule 4, Rules Governing Section 2254 5 | Cases. In the amended petition, petitioner must set forth each claim for relief and summarize the 6 || facts he alleges support each of the identified claims. 7 In an amended petition, petitioner is not required to append exhibits to his petition 8 || is permitted todoso. Additionally, petitioner must address whether he has exhausted each 9 | claim he has brought. 10 CONCLUSION 11 Good cause appearing, IT IS HEREBY ORDERED that: 12 1. Petitioner’s petition for writ of habeas corpus is dismissed with leave to amend (ECF 13 No. | at 3.) 14 2. Within thirty (30) days of the date of this order, petitioner shall file an amended 15 petition.'! The amended petition must bear the docket number assigned to this case and 16 must be labeled “First Amended Petition.” 17 3. The Clerk of the Court is directed to send petitioner the court’s form application for 18 writ of habeas corpus. 19 4. Petitioner is warned that his failure to comply with this order will result in a 20 recommendation that this action be dismissed. 21 | Dated: November 9, 2021 22 23 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 25 DB:14 26 || DB/DB Prisoner Inbox/Habeas/S/vasq0726 scrn.lta 27 | ' By setting this deadline the court is making no finding or representation that the petition is not 28 | subject to dismissal as untimely.