(HC) Warren v. Sherman ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 OMAR WARREN, ) Case No.: 1:19-cv-01007-JLT (HC) ) 12 Petitioner, ) ORDER TO SHOW CAUSE WHY PETITION ) SHOULD NOT BE DISMISSED FOR FAILURE 13 v. ) TO EXHAUST STATE REMEDIES ) 14 STU SHERMAN, et al., ) [TWENTY-ONE DAY DEADLINE] 15 Defendants. ) ) 16 ) 17 Petitioner filed a petition for writ of habeas corpus on July 24, 2019. The petition appears to 18 be unexhausted; therefore, the Court ORDERS Petitioner to show cause why it should not be 19 dismissed without prejudice. 20 DISCUSSION 21 A. Preliminary Review of Petition 22 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 23 if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to 24 relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The Advisory 25 Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, 26 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 27 answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001). 28 /// 1 B. Exhaustion 2 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 3 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 4 exhaustion doctrine is based on comity to the state court and gives the state court the initial 5 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 6 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 7 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 8 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 9 Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court was given a full 10 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 11 claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 12 U.S. 1 (1992) (factual basis). 13 Additionally, the petitioner must have specifically told the state court that he was raising a 14 federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme 15 Court reiterated the rule as follows: 16 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 in 17 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 18 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 claims under the United 19 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 20 Amendment, he must say so, not only in federal court, but in state court. 21 Duncan, 513 U.S. at 365-66. The Ninth Circuit examined the rule further, stating: 22 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 23 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 24 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, 25 189 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 26 that would control resolution of the claim on federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 27 1996); . . . . 28 1 In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal 2 standards for reviewing the claim may be or how obvious the violation of federal law is. 3 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons v. 4 Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001). 5 Petitioner does not state whether he filed an appeal in the California Court of Appeal. It 6 appears he has not filed any other state court actions. It appears that Petitioner has filed the instant 7 habeas petition in the wrong court, based on his captioning. Because it appears Petitioner has not 8 presented his claims for federal relief to the California Supreme Court, the Court must dismiss the 9 petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 10 481 (9th Cir. 2001). The Court cannot consider a petition that is unexhausted. Rose v. Lundy, 455 11 U.S. 509, 521-22 (1982). 12 ORDER 13 Accordingly, the Court ORDERS that Petitioner show cause within twenty-one days why the 14 petition should not be dismissed for failure to exhaust state remedies. 15 16 IT IS SO ORDERED. 17 Dated: August 21, 2019 /s/ Jennifer L. Thurston 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28