(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 DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION 14 TO SUMMARILY DISMISS WARDEN ATCHYLEY,1 UNEXHAUSTED PETITION 15 Respondent. [TWENTY-ONE DAY OBJECTION 16 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. 20 Petitioner filed the instant habeas petition on September 13, 2021, challenging his 1996 21 conviction in Madera County Superior Court. (Doc. 1.) After conducting a preliminary review of 22 the petition, the Court determined that the petition appeared to be unexhausted as Petitioner had 23 not yet pursued relief in the California Supreme Court. Therefore, on September 17, 2021, the 24 Court issued an order to show cause why the petition should not be dismissed for failure to 25 1 Petitioner was granted leave to amend to name a proper respondent. In his response to the order to show cause, 26 Petitioner requests that Warden Atchyley, the warden of his institution, be substituted as Respondent. Petitioner has named the proper respondent since Warden Atchyley is the warden at his institution and he has “day-to-day control 27 over” the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992). Accordingly, Petitioner’s motion to amend and name a proper respondent is granted, and Warden Atchyley is hereby substituted as Respondent 28 in this matter. 1 exhaust state remedies. (Doc. 5.) On September 29, 2021, Petitioner filed a response to the order 2 to show cause. Because the petition appears to be unexhausted, the Court will recommend it be 3 DISMISSED WITHOUT PREJUDICE to refiling when exhaustion is completed. 4 DISCUSSION 5 A. Preliminary Review of Petition 6 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 7 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 8 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 9 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 10 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 11 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 12 2001). 13 B. Exhaustion 14 A petitioner who is in state custody and wishes to collaterally challenge his conviction by 15 a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). 16 The exhaustion doctrine is based on comity to the state court and gives the state court the initial 17 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 18 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 19 A petitioner can satisfy the exhaustion requirement by providing the highest state court 20 with a full and fair opportunity to consider each claim before presenting it to the federal court. 21 Duncan v. Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court 22 was given a full and fair opportunity to hear a claim if the petitioner has presented the highest 23 state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney 24 v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 25 Additionally, the petitioner must have specifically told the state court that he was raising a 26 federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme 27 Court reiterated the rule as follows: 28 1 In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state 2 remedies requires that petitioners “fairly presen[t]” federal claims to the state courts in order to give the State the “opportunity to pass upon and correct alleged violations 3 of the prisoners' federal rights” (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' 4 federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim 5 that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, 6 but in state court. 7 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: 8 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 9 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 10 that the petitioner 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- 11 evident," Gatlin v. Madding, 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 12 state law on the same considerations that would control resolution of the claim on federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson 13 v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . . 14 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 15 standards for reviewing the claim may be or how obvious the violation of federal law is. 16 17 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons 18 v. Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001). 19 Petitioner indicates he is not knowledgeable in the law and is learning from trial and error. 20 He states that after he consulted a prison lawyer, he was informed that he was wrong in his 21 understanding of the court system. Thus, it appears that although Petitioner has sought relief in 22 the Fifth DCA, he has not yet sought further relief in the California Supreme Court. Because 23 Petitioner has not presented his claims for federal relief to the California Supreme Court, the 24 Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); 25 Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The Court cannot consider a petition that is 26 entirely unexhausted. Rose v. Lundy, 455 U.S. 509, 521-22 (1982). Petitioner is advised that 27 dismissal would be without prejudice to returning to federal court once exhaustion is complete. 28 ///// 1 ORDER 2 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District 3 Judge to the case. 4 RECOMMENDATION 5 Based on the foregoing, the Court HEREBY RECOMMENDS that the habeas corpus 6 petition be DISMISSED WITHOUT PREJUDICE for failure to exhaust state remedies. 7 This Findings and Recommendation is submitted to the United States District Court Judge 8 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 9 of the Local Rules of Practice for the United States District Court, Eastern District of California. 10 Within twenty-one (21) days after being served with a copy, Petitioner may file written objections 11 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 12 and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 13 U.S.C. § 636 (b)(1)(C). Failure to file objections within the specified time may waive the right to 14 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 IT IS SO ORDERED. 16 17 Dated: September 30, 2021 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28