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Ontiveros v. Subia

August 27, 2008

EDWARD ONTIVEROS, PETITIONER,
v.
R.J. SUBIA, ET AL., RESPONDENTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This action proceeds on the October 22, 2007, petition, in which petitioner challenges the Board of Parole Hearings' ("Board") August 23, 2006, decision denying him parole. Respondents move to dismiss this action upon the grounds that petitioner failed to exhaust available state remedies and that some of petitioner's claims allege only violations of state law that are not cognizable on federal habeas review. Resps.' Mot. to Dism., at 6:2-6. Petitioner argues that his petition should proceed because he provided sufficient documentation to prove that his denial of parole violated his due process rights and that the state courts failed to investigate his claims. He also requests an extension of time so that this court can reconsider his October 22, 2007, request for appointment of counsel. Pet.'s Opp'n, at 1:19-21, 2:18-24, 4:27-5:4, 6:18-28, 7:11-5, 10:7-15. For the reasons explained below, petitioner's request for an extension of time is denied and the court recommends that respondents' motion dismiss be granted.

I. Procedural History

Petitioner is serving twenty-five years to life for first degree murder, a crime for which he was sentenced on February 14, 1984. Pet., unnumbered page 12. Petitioner came up for parole before the Board on August 23, 2006, and parole was denied. Id. at unnumbered pages 22-29.

Petitioner sought habeas corpus relief in Alameda County Superior Court, which was denied on February 22, 2007. Id. at unnumbered page 9. The Superior Court found that the petition failed "to state a prima facie case for relief" and lacked "sufficient documentation for a proper review of [the] claims." Id.

Petitioner next sought relief in the First Appellate District of the California Court of Appeal. That petition was denied on March 8, 2007 because petitioner failed "to provide a transcript of the hearing before the Board of Parole Hearings." Id. at unnumbered page 8.

Petitioner then filed a petition in the California Supreme Court on March 13, 2007. Id. at unnumbered page 11. This petition was denied with a citation to People v. Duvall, 9 Cal. 4th 464, 474 (1995), on June 13, 2007. Id. at unnumbered page 10.

On October 22, 2007, petitioner filed the instant petition on the grounds that he was denied parole without due process because there was no evidence that he is a risk to public safety and that respondents abrogated his right to parole under California Penal Code section 3041 by "illegally expand[ing] the plain language" of the statute and denying him a "just and fair hearing." Id. at 2, 5-6.

II. Standards

Section 2254 of Title 28 of the United States Code imposes an exhaustion requirement*fn1 on state prisoners seeking federal habeas relief:

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B) (i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

It is important to note that federal habeas review is available for a state prisoner's federal claims, and that the exhaustion requirement, in its original form as a judicially crafted doctrine and as presently codified, is rooted in the doctrines of comity and federalism. Ex parte Royall, 117 U.S. 241, 251 (1886) (creating a discretionary exhaustion requirement in order to avoid "unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution."); Rose v. Lundy, 455 U.S. 509, 518-19 (1982) ("The exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings" and to give the state courts the "first opportunity to review all claims of constitutional error .") This means that the petitioner must present both the operative facts and the federal legal theory to the highest state court permitted under the state's rules. Picard v. Connor, 404 U.S. 270, 278 (1971); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (to exhaust a claim, a state court "must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution."). A petitioner must present his claims pursuant to the state's established procedures so as to ensure the courts may reach the merits. See Castille v. Peoples, 489 U.S. 346 (1989) (finding exhaustion requirements were not met where petitioner had not fairly presented his claims to the state courts); see also Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) ("A petitioner has not satisfied the exhaustion requirement unless he has fairly presented his claim to the highest state court. Submitting a new claim to the state's highest ...


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