FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO EXHAUST STATE COURT REMEDIES AND FAILURE TO STATE A CLAIM COGNIZABLE IN A PROCEEDING PURSUANT TO 28 U.S.C. § 2254
FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE ACTION OBJECTIONS DEADLINE: THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on February 18, 2011.
I. Screening the Petition
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
Here, Petitioner, an inmate of Kern Valley State Prison (KVSP) in Delano, California, is serving a sentence of "175 TO LIFE" imposed in the Merced County Superior Court in case number 30437 on November 30, 2007, and August 7, 2009, for four counts of assault on a police officer with a semi-automatic firearm, one count of evading arrest, and one count of being a felon in possession of a firearm. (Pet. 1.) On Petitioner's appeal from the judgment of conviction, the only issue Petitioner raised was a violation of his Sixth Amendment right based on the sentencing court's denial of his motion to represent himself at a re-sentencing. (Pet. 2.) Petitioner alleges that the judgment was affirmed on appeal in July 2010, and Petitioner sought review by the state "Supreme Court," which was denied on January 3, 2011. (Pet. 2-3.)
Petitioner alleges that the grounds raised before the California Supreme Court were a request for a forty-five day extension to file a petition for review. (Pet. 3.) Petitioner alleges that his appellate attorney declined to file a petition for review, and Petitioner submits documentation, consisting of correspondence from his appellate counsel and the Clerk of the California Supreme Court, that establishes that counsel advised Petitioner by letter dated July 29, 2010, that the Court of Appeal (DCA) had upheld Petitioner's conviction and sentence but that a petition for review was not warranted. (Pet. 11.) However, counsel enclosed with his letter a copy of the DCA's opinion, and counsel further instructed Petitioner that a petition for review must be filed between the thirty-first and fortieth day after the DCA's decision, but no later. (Pet. 11-12.) Petitioner was also instructed as to the necessity of exhausting state court remedies by filing a petition for review in the California Supreme Court in which all possible federal constitutional claims were raised. (Id.)
Additional correspondence attached to the petition reflects that the Clerk of the California Supreme Court wrote Petitioner on January 4, 2011, informing Petitioner that his "document," received January 3, 2011, in People v. Chiprez, DCA case number F058302, could not be considered by the court because the DCA decision was filed on July 28, 2010, and thus the last day a pleading from Petitioner could have been entertained was September 27, 2010. (Pet. 9.) The document received from Petitioner on January 3, 2011, was a request for a forty-five day extension of time within which to file a petition for review due to lack of access to the prison law library. (Pet. 7.) The document was dated "8-13-10," (pet. 7), but it was received by the Court on January 3, 2011 (id.). Petitioner also submitted a proof of service by mail indicating that he deposited the request in the mail at KVSP on September 9, 2010. (Pet. 8.)
Petitioner raises the following claim in the petition: Petitioner's Fourteenth Amendment rights were violated by his appellate counsel's declining to file a petition for review and then by Petitioner's inability to file timely a petition for review despite his having sought a forty-five-day extension of time within the pertinent time period, due to a prison lockdown. (Pet. 5.) Petitioner admitted that he did not exhaust his state remedies and that his failure was because of a prison lockdown, absence of access to the law library and to a pager system for access to a copy service, and "NO MOVEMENT, SAFETY AND SECURITY." (Pet. 5.) Petitioner asks this Court to remand the case to the California Supreme Court for further proceedings. (Pet. 22.)
II. Failure to Exhaust State Court Remedies Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A petitioner who is in state custody and wishes to challenge collaterally a conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with the necessary jurisdiction a full and fair opportunity to consider each claim before presenting it to the federal court, and demonstrating that no state remedy remains available. Picard v. Connor, 404 U.S. 270, 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 (1992), superceded by statute as stated in Williams v. Taylor, 529 U.S. 362 (2000) (factual basis).
Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir.2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th ...