(HC) Palmero v. Robertson ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PETER PALMERO, No. 1:20-cv-00413-SKO (HC) 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED 13 v. FOR FAILURE TO EXHAUST STATE REMEDIES 14 JIM ROBERTSON, Warden, [TWENTY-ONE DAY DEADLINE] 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. He filed the instant habeas petition on March 16, 2020, 19 challenging his 2017 conviction in Kern County Superior Court of possessing a sharp instrument 20 in a penal institution. Two of the three claims presented in the petition are unexhausted; 21 therefore, Petitioner will be ordered to show cause why it should not be dismissed without 22 prejudice. 23 DISCUSSION 24 A. Preliminary Review of Petition 25 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 26 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 27 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 28 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 1 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 2 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 3 2001). 4 B. Exhaustion 5 A petitioner who is in state custody and wishes to collaterally challenge his conviction by 6 a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). 7 The exhaustion doctrine is based on comity to the state court and gives the state court the initial 8 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 9 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 10 A petitioner can satisfy the exhaustion requirement by providing the highest state court 11 with a full and fair opportunity to consider each claim before presenting it to the federal court. 12 Duncan v. Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court 13 was given a full and fair opportunity to hear a claim if the petitioner has presented the highest 14 state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney 15 v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 16 Additionally, the petitioner must have specifically told the state court that he was raising a 17 federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme 18 Court reiterated the rule as follows: 19 In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners “fairly presen[t]” federal claims to the state courts 20 in 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 21 courts are to 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 22 claims under the United 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 23 guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 24 25 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 26 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 27 claims were 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 28 that the petitioner must make the federal basis of the claim explicit either by citing 1 federal law or the decisions of federal courts, even if the federal basis is “self- evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. 2 Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on 3 federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . . 4 In Johnson, we explained that the petitioner must alert the state court to the fact that 5 the 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 6 law is. 7 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons 8 v. Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001). 9 Petitioner raises three claims in his petition. He concedes that Grounds Two and Three 10 have not been presented to the state courts and are unexhausted. He references a motion for stay 11 of proceedings in his petition; however, no such motion has been included or filed. Because 12 Petitioner has not presented his claims for federal relief to the California Supreme Court, the 13 Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); 14 Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). 15 ORDER 16 Accordingly, IT IS HEREBY ORDERED that Petitioner is directed to SHOW CAUSE 17 within twenty-one (21) days why the petition should not be dismissed for failure to exhaust state 18 remedies. 19 IT IS SO ORDERED. 20 Sheila K. Oberto 21 Dated: March 24, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28