(HC) Michael N. Chisom v. Madera County ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL NARVELLE CHISOM, No. 1:21-cv-01368-SKO (HC) 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED 13 v. FOR FAILURE TO EXHAUST STATE REMEDIES 14 MADERA COUNTY, ORDER GRANTING PETITIONER 15 Respondent. LEAVE TO AMEND RESPONDENT 16 [TWENTY-ONE DAY DEADLINE] 17 18 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed the instant habeas petition on 20 September 13, 2021. (Doc. 1.) The petition appears to be unexhausted. In addition, Petitioner 21 fails to name a proper respondent. Petitioner will be ordered to show cause why the petition 22 should not be dismissed without prejudice, and he will be granted leave to amend the petition to 23 name a proper respondent. 24 DISCUSSION 25 A. Preliminary Review of Petition 26 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 27 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 28 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 1 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 2 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 3 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th 4 Cir.2001). 5 B. Exhaustion 6 A petitioner who is in state custody and wishes to collaterally challenge his conviction by 7 a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). 8 The exhaustion doctrine is based on comity to the state court and gives the state court the initial 9 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 10 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 11 A petitioner can satisfy the exhaustion requirement by providing the highest state court 12 with a full and fair opportunity to consider each claim before presenting it to the federal court. 13 Duncan v. Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court 14 was given a full and fair opportunity to hear a claim if the petitioner has presented the highest 15 state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney 16 v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 17 Additionally, the petitioner must have specifically told the state court that he was raising a 18 federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme 19 Court reiterated the rule as follows: 20 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 21 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 22 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 23 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 24 guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 25 26 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 27 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 28 claims were based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 1 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing 2 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. 3 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 4 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); . . . . 5 In Johnson, we explained that the petitioner must alert the state court to the fact that 6 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 7 law is. 8 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons 9 v. Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001). 10 Petitioner indicates he has petitioned for writ of habeas corpus in the California Court of 11 Appeal, Fifth Appellate District. Based on the petition and documents attached thereto, it appears 12 Petitioner has not presented his claims for federal relief to the California Supreme Court. The 13 Court cannot consider a petition that is unexhausted. Rose v. Lundy, 455 U.S. 509, 521-22 14 (1982). Therefore, the Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 15 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). 16 C. Failure to Name a Proper Respondent 17 Petitioner names Madera County as Respondent. A petitioner seeking habeas corpus 18 relief under 28 U.S.C. § 2254 must name the state officer having custody of him as the 19 respondent to the petition. Rule 2 (a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. 20 Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 21 (9th Cir. 1994). Normally, the person having custody of an incarcerated petitioner is the warden 22 of the prison in which the petitioner is incarcerated because the warden has "day-to-day control 23 over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also 24 Stanley, 21 F.3d at 360. However, the chief officer in charge of state penal institutions is also 25 appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or 26 parole, the proper respondent is his probation or parole officer and the official in charge of the 27 parole or probation agency or state correctional agency. Id. 28 Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition 1 for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 2 1326 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd 3 Cir. 1976). However, the Court will give Petitioner the opportunity to cure this defect by 4 amending the petition to name a proper respondent, such as the warden of his facility. See West 5 v. Louisiana, 478 F.2d 1026, 1029 (5th Cir. 1973), vacated in part on other grounds, 510 F.2d 6 363 (5th Cir. 1975) (en banc) (allowing petitioner to amend petition to name proper respondent); 7 Ashley v. State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). In the interests of judicial 8 economy, Petitioner need not file an amended petition. Instead, Petitioner may file a motion 9 entitled "Motion to Amend the Petition to Name a Proper Respondent" wherein Petitioner may 10 name the proper respondent in this action. 11 ORDER 12 Accordingly, IT IS HEREBY ORDERED: 13 1) Petitioner is directed to SHOW CAUSE within twenty-one (21) days why the petition 14 should not be dismissed for failure to exhaust state remedies; and 15 2) Petitioner is GRANTED twenty-one (21) days from the date of service of this order in 16 which to file a motion to amend the instant petition and name a proper respondent. 17 Failure to comply with this order will result in dismissal of the petition. 18 IT IS SO ORDERED. 19 20 Dated: September 17, 2021 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28