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Earl Henry Down v. J. Haviland

February 14, 2011

EARL HENRY DOWN, PETITIONER,
v.
J. HAVILAND, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 27, 2010, respondent filed a motion to dismiss the petition, contending that the claims raised therein had not been properly exhausted. Dckt. No. 11. Respondent further argues that, to the extent petitioner raises challenges to his conviction or sentence, such claims are untimely. For the following reasons, the undersigned recommends that respondent's motion to dismiss be granted in part and denied in part.

I. Exhaustion

A district court may not grant a petition for a writ of habeas corpus unless the petitioner has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1). A state will not be deemed to have waived the exhaustion requirement unless the state, through counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(3).

Exhaustion of state remedies requires that a petitioner fairly present federal claims to the highest state court, either on direct appeal or through state collateral proceedings, in order to give the highest state court "the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (some internal quotation marks omitted). "[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 based on federal law." Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by,247 F.3d 904 (9th Cir. 2000). "[T]he 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-evident . . . ." Id. (citations omitted); see also Gray v. Netherland, 518 U.S. 152, 162-63 (1996) ("a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief"); Duncan, 513 U.S. at 365-66 (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").

Petitioner filed a habeas petition in the California Supreme Court on March 24, 2009. Resp.'s Mot. to Dism., Ex. 2. The California Supreme Court denied the petition with citation to People v. Duvall, 9 Cal.4th 464, 474 (1995). Id., Ex. 3. The instant petition followed, raising these federal claims*fn1

(1) California's Proposition 9, which increased the periods between parole hearings, is an unconstitutional ex post facto law (Pet. at 4);

(2) The California Board of Parole Hearings ("BPH") deprived petitioner of due process when it prevented him from cross-examining his "accusers" and objecting to "BPH false testimony" (id.);

(3) The BPH deprived petitioner of equal protection (id.);

(4) Increased victim participation in petitioner's parole consideration hearing pursuant to Proposition 9 violated "the Privacy Act" (id.);

(5) The BPH's exercise of sentencing functions violates "the Separation of Powers Doctrine" (id. at 4);

(6) The BPH violated petitioner's Eighth Amendment right to be free from cruel and unusual punishment (id. at 8);

(7) The BPH violated Blakely, Apprendi, and Cunningham by accusing petitioner of crimes he did not commit (id. at 10);

(8) The BPH denied petitioner parole despite the absence of "some evidence" of his current dangerousness (id. at 10-11).

Respondent contends that these claims are unexhausted, because the California Supreme Court's denial of the claims with citation to Duvall shows that petitioner failed ...


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