(HC) Valera v. The People of the State of California ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOEL VALERA, Case No. 1:22-cv-00852-ADA-CDB (HC) 12 Petitioner, ORDER DISMISSING PETITION WITH LEAVE TO FILE A FIRST AMENDED PETITION 13 v. (ECF No. 1) 14 THE PEOPLE OF THE STATE OF CALIFORNIA, 15 Respondent. 16 17 18 Petitioner Joel Valera (“Petitioner”) is a state prisoner proceeding pro se with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). The petition seeks review of a 20 judgment of conviction in the Superior Court of California for the County of Fresno. 21 Preliminary Screening 22 Rule 4 of the Rules Governing § 2254 requires the Court to conduct a preliminary review of 23 each petition for writ of habeas corpus. Pro se habeas corpus petitions are to be liberally construed. 24 Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the Court must dismiss a petition “[i]f it 25 plainly appears from the petition…that the petitioner is not entitled to relief.” Habeas Rule 4; see also 26 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) 27 specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 28 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that 1 point to a real possibility of constitutional error. Mayle v. Felix, 545 U.S. 644, 655 (2005). 2 Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary 3 dismissal. Hendricks, 908 F.2d at 491. A petition for habeas corpus should not be dismissed without 4 leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave to be 5 granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 6 Procedural and Factual Background 7 Petitioner filed this instant petition on July 11, 2022. (ECF No. 1 at 2).1 Petitioner was 8 convicted in the Superior Court of the State of California for the County of Fresno and sentenced to 50 9 years to life with the option for parole. Id. Petitioner does not identify his state case number or the 10 date of his conviction and sentence. Petitioner states he was convicted of (1) two counts of person 11 convicted of felony owning, purchasing, receiving or possessing a firearm; (2) discharge of a firearm 12 at an inhabited dwelling house, occupied building, vehicle, aircraft, inhabited housecar or inhabited 13 camper; (3) falsely representing self as another person to a peace officer; and (4) murder. Id.; See Cal. 14 Pen. Code §§ 28900, 246, 148.9; 187. 15 At some point, Petitioner claims he appealed to the Fifth District Court of Appeal of the State 16 of California. (ECF No. 1 at 3). Petitioner’s appeal was denied. Id. Petitioner does not identify the 17 result date and/or the citation of the Court of Appeal’s decision. Id. 18 Petitioner’s Claims 19 Petitioner first argues he is entitled to relief in a habeas corpus proceeding because of 20 ineffective assistance of counsel. (ECF No. 1 at 5). Specifically, Petitioner claims his attorney did not 21 follow his instructions, “was not asking witness questions that I would ask her to ask” and “would not 22 provide evidence that I would request.” Id. Plaintiff asserts he attempted to relieve his attorney on 23 multiple occasions but was denied. Id. 24 Next, Petitioner contends he is entitled to relief in habeas corpus proceedings because the 25 Judge was “prejudice and biased”. Id. at 5. Petitioner claims the Judge unjustly denied his attempts to 26 27 28 1 It appears the first page of Petitioner’s Petition for Writ of Habeas Corpus is missing. The document begins on page two. 1 file Marsden motions and “multiple pro-se [sic] motions”. Id. Petitioner argues “such motions are 2 granted at a higher level to people of different races at this court of conviction”. Id. 3 Petitioner also asserts he is entitled to relief in habeas corpus proceedings because tampering of 4 evidence occurred. Id. at 6. Petitioner alleges during his interrogation, the Fresno sheriff detective 5 station interfered with the audio recording. Id. Further, Petitioner claims Fresno detectives “did not 6 properly search victims’ home” and fabricated evidence. Id. Lastly, Petitioner argues he is entitled to 7 relief in habeas corpus proceedings because he was denied the right to testify. Id. 8 Discussion 9 Petitioner has failed to provide an adequate petition for writ of habeas corpus. First, Petitioner 10 does not name an appropriate respondent to the petition. A petitioner seeking habeas corpus relief 11 under 28 U.S.C. § 2254 must name the state officer having custody of him as the respondent to the 12 petition. Habeas Rule 2(a); Smith v. Idaho, 392 F.3d 350, 354 (9th Cir. 2004) (citing Stanley v. 13 California Supreme Court, 21 F.3d 359. 360 (9th Cir. 1996)). Generally, the person having custody of 14 an incarcerated petitioner is the warden of the prison in which the petitioner is incarcerated because 15 the warden has “day-to-day control over” the petitioner and thus can produce “the body of the 16 petitioner.” Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (quotations omitted). The 17 chief officer in charge of the state penal institutions can also serve as an appropriate respondent. 18 Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996). Here, Petitioner only names “The People 19 of the State of California” as a respondent to his petition. (ECF No. 1 at 2). Petitioner’s failure to 20 name a proper respondent requires dismissal of his habeas corpus petition for lack of jurisdiction. 21 Petitioner’s habeas corpus petition also fails to show he exhausted state judicial remedies. A 22 petitioner who is in state custody and wishes to collaterally challenge his convictions by a petition for 23 writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion 24 doctrine is based on comity to the state court and gives the state court the initial opportunity to correct 25 the state’s alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose 26 v. Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by providing 27 the highest state court with the necessary jurisdiction a full and fair opportunity to consider each claim 28 before presenting it to the federal court and demonstrating that no state remedy remains available. 1 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citing Picard v. Connor, 404 U.S. 270, 275 2 (1971)). When none of a petitioner's claims has been presented to the highest state court as required, 3 the Court must dismiss the petition. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez 4 v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). 5 In this case, Petitioner only alleges he had appealed his case to the “Court of Appeal of the 6 State of California (Fifth District).” (ECF No. 1 at 3). Petitioner fails to indicate whether this 7 “appeal” stems from his underlying conviction or occurred as a separate collateral challenge to his 8 conviction. Moreover, Petitioner has failed to allege he has provided the highest state court, the 9 Supreme Court of California, with a full and fair opportunity to consider his petition. Therefore, 10 Petitioner’s petition must be dismissed as the Court cannot consider a petition that is entirely 11 unexhausted. Rose, 455 U.S. at 521-22. 12 Next, Petitioner’s habeas corpus petition fails to show it is timely. Under the Antiterrorism 13 and Effective Death Penalty Act, a one-year limitation period applies to all habeas corpus petitions, 14 however denominated, filed by convicted state prisoners. 28 U.S.C. § 2244(d); Mack v. Garrett, No. 15 21-1541, 2022 U.S. App. LEXIS 29699, at *6-7 (9th Cir. October 25, 2022) (unpublished); Stancle v. 16 Clay, 692 F.3d 948, 953 (9th Cir. 2012). Petitioner has not identified when his conviction became 17 final or when he initiated, if at all, a collateral challenge to his underlying conviction. Therefore, the 18 Court must dismiss Petitioner’s habeas corpus petition for failing to identify any relevant dates. 19 For the reasons discussed, Petitioner’s habeas corpus petition is procedurally deficient and 20 should be dismissed. Petitioner will be granted an opportunity to file a First Amended Petition curing 21 the aforementioned deficiencies. Moreover, pursuant to Habeas Rule 2(c), Petitioner is encouraged to 22 expand upon his federal and constitutional claims specifying all grounds of relief available to the 23 Petitioner, stating all the relevant facts supporting each ground; and 3) providing the relief requested. 24 Accordingly, it is hereby ORDERED: 25 The Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE for failure 26 to name a proper respondent, failure to show exhaustion of state remedies, and failure to show the 27 petition is within the applicable statute of limitations; 28 1 Petitioner is GRANTED thirty days from the date of service of this order to file a First 2 || Amended Petition as directed by this Order; and 3 Petitioner is forewarned that failure to comply with this Order may result in an Order of 4 || Dismissal or a Recommendation that the petition be dismissed pursuant to Local Rule 110. 5 ‘ IT IS SO ORDERED. 7 Dated: _ November 2, 2022 | Ww VL D R~ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28