The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RE:
RESPONDENT'S MOTION TO DISMISS THE PETITION (DOCS. 10, 1)
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITHOUT
LEAVE TO AMEND (DOC. 1)
FINDINGS AND RECOMMENDATIONS TO
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY AND TO DIRECT THE
CLERK TO CLOSE THE CASE OBJECTIONS DEADLINE: THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se 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 Respondent's motion to dismiss the petition filed on February 7, 2011. Petitioner filed opposition to the motion on February 24, 2011. No reply was filed.
I. Proceeding by a Motion to Dismiss
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 district court must award a writ of habeas corpus or issue an order to show cause why it should not be granted unless it appears from the application that the applicant is not entitled thereto. 28 U.S.C. § 2243. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) permits the filing of "an answer, motion, or other response," and thus it authorizes the filing of a motion in lieu of an answer in response to a petition. Rule 4 confers upon the Court broad discretion to take "other action the judge may order," including authorizing a respondent to make a motion to dismiss based upon information furnished by respondent, which may show that a petitioner's claims suffer a procedural or jurisdictional infirmity, such as res judicata, failure to exhaust state remedies, or absence of custody. Habeas Rule 4, Advisory Committee Notes, 1976 Adoption and 2004 Amendments.
In light of the broad language of Rule 4, this circuit has held that motions to dismiss are appropriate in cases that proceed pursuant to 28 U.S.C. § 2254 and present procedural issues that might limit consideration of the merits of the petition. O'Bremski v. Maas, 915 F.2d 418, 420 (9th Cir. 1990) (proceeding under Rule 4 to consider a motion to dismiss for failure to raise any issue of federal law, which was based on the insufficiency of the facts as alleged in the petition to justify relief as a matter of law); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (considering procedural default in state court on a motion to dismiss); Hillery v. Pulley, 533 F.Supp. 1189, 1194 n.12 (E.D.Cal. 1982) (finding it appropriate to consider failure to exhaust state remedies on a motion to dismiss after receipt of evidence pursuant to Rule 7(a) to clarify whether or not the possible defect, not apparent on the face of the petition, might preclude a hearing on the merits).
The filing of a motion to dismiss instead of an answer was authorized by the Court's order of December 7, 2010, which referred to the possibility of Respondent's filing a motion to dismiss and set forth a briefing schedule if such a motion were filed. (Order, doc. 4, 3-4.) It is established in this circuit that the filing of a motion to dismiss is expressly authorized by Habeas Rule 4. Habeas Rule 4 Advisory Committee Notes, 1976 Adoption and 2004 Amendments; Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983).
Further, Habeas Rule 7 permits the Court to direct the parties to expand the record by submitting additional materials relating to the petition and to authenticate such materials, which may include letters predating the filing of the petition, documents, exhibits, affidavits, and answers under oath to written interrogatories propounded by the judge. Habeas Rule 7(a), (b). If, upon expansion of the record, the Court perceives that a defect not apparent on the face of the petition may preclude a hearing on the merits, the Court may proceed to determine a motion to dismiss. Hillery v. Pulley, 533 F.Supp. 1189, 1196.
In Blackledge v. Allison, 431 U.S. 63, 80-81 (1977), the United States Supreme Court suggested that summary judgment standards should be used to test whether facially adequate allegations have a sufficient basis in fact to warrant plenary presentation of evidence. The Court noted that expansion of the record in a given case could demonstrate that an evidentiary hearing is unnecessary. Id. at 81. The Court specifically advised that there might be cases in which expansion of the record would provide evidence against a petitioner's contentions so overwhelming as to justify a conclusion that an allegation of fact does not raise a substantial issue of fact. Id. In such circumstances, the petitioner is entitled to "careful consideration and plenary processing of (his claim,) including full opportunity for presentation of the relevant facts." Id. at 82-83.
Summary judgment standards were likewise applied in Hillery v. Pulley, 533 F.Supp. 1189, 1197 (E.D.Cal. 1982), where the Court stated:
The standards under Rule 56 are well known (footnote omitted). To paraphrase them for purposes of habeas proceedings, it may be said that a motion to dismiss a petition for habeas corpus made after expansion of the record may only be granted when the matters on file reveal that there is no genuine issue of material fact "which if resolved in accordance with the petitioner's contentions would entitle him to relief... (citation omitted). Only if it appears from undisputed facts... that as a matter of law petitioner is entitled to discharge, or that as a matter of law he is not, may an evidentiary hearing be avoided." (Citation omitted.) 533 F.Supp. 1197.
In the present case, the record was expanded in connection with the motion to dismiss to include facts concerning Petitioner's presentation of his claims to the state courts. Pursuant to the foregoing standards, this expansion of the record may permit summary disposition of the petition without a full evidentiary hearing.
Accordingly, pursuant to Habeas Rule 4, the Court will review the facts alleged in the petition and as reflected in the evidentiary materials submitted by the parties in connection with the motion to dismiss.
II. Failure to Exhaust State Court Remedies Respondent argues that the petition should be dismissed because Petitioner failed to exhaust his state court remedies with respect to the claims raised in the petition.
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 Cir. 1998). In Duncan, the United States Supreme Court reiterated the rule as follows:
In Picard v. Connor, 404 U.S. 270, 275...(1971), we said that exhaustion of state 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 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' 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 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, but in state court.
Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001), stating:
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 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 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-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 state law on the same considerations that would control resolution of the claim on federal grounds, see, e.g., Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); Crotts, 73 F.3d at 865. ...
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 standards for reviewing the claim may be or how obvious the violation of federal law is.
Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001).
Where none of a petitioner's claims has been presented to the highest state court as required by the exhaustion doctrine, the Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The authority of a court to hold a mixed petition in abeyance pending exhaustion of the unexhausted claims has not been extended to petitions that contain no exhausted claims. Raspberry, 448 F.3d at 1154.
Here, Petitioner challenges the decision of California's Board of Parole Hearings (BPH) made after a hearing held on July 8, 2009, finding Petitioner unsuitable for parole. (Pet. 1, 9, 11, 27-30.) Respondent appended to the motion to dismiss printouts of state court decisions and dockets to show that when Respondent's motion to dismiss was filed on February 7, 2011, Petitioner had not filed a petition for review in the California Supreme Court regarding the claims raised in the present petition.
In response, Petitioner asked the Court to take judicial notice of
the Court's characterization of Petitioner's exhaustion of state court
remedies in a case previously pending in this Court -- namely, Cedric
Brown v. J. Hartley, 1:10-cv-00652-LJODLB-HC. *fn1
The findings and recommendations filed on October 1,
2010, in that case reflect that Petitioner's claims concerned the
alleged inconsistency of the BPH's reasoning for denying Petitioner
parole at various parole consideration hearings from 1999 through
2007, and alleged unfairness in Petitioner's 2007 parole hearing.
(Doc. 14, 1:20-25.) Because the previous petition concerned other
decisions of the BPH, a showing of exhaustion of state court remedies
with respect to Petitioner's previous claims does ...