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Salvador Zapien v. D. Sisto

July 11, 2011

SALVADOR ZAPIEN,
PETITIONER,
v.
D. SISTO, RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING RESPONDENT'S MOTION TO DISMISS THE INSTANT PETITION [Doc. 34]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).

BACKGROUND

On November 18, 2005, Petitioner was convicted in the Tulare county Superior Court of one count of second degree murder with a weapon use enhancement. (V CT 1056-1058.) On December 23, 2005, Petitioner was sentenced to an indeterminate term of 15 years to life, plus an additional year for the weapon use enhancement. (V CT 1164-1165.)

Petitioner appealed his conviction to the California Court of Appeal, Fifth Appellate District. The Court of Appeal affirmed the judgment. Petitioner then filed a petition for review in the California Supreme Court, which was denied. (LD 5.) Petitioner then filed a petition for writ of certiorari to the United States Supreme Court, which was also denied. (LD 6.)

On December 16, 2008, Petitioner filed a petition for writ of habeas corpus in the California Superior Court, Tulare County. The Court denied the petition in a reasoned decision. (LD 7.)

On March 12, 2009, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District. The petition was denied. (LD 8.) On September 25, 2009, Petitioner filed a second petition for writ of habeas corpus in the California Court of Appeal, Fifth Appellate District, which was also denied. (LD 8.)

On May 6, 2010, Petitioner filed a petition for review in the California Supreme Court. The petition was denied with citation to In re Swain, 34 Cal.2d 300, 304 (1949). (LD 9.)

Petitioner filed the instant petition for writ of habeas corpus on December 31, 2008. Approximately two months later, he filed an amended petition along with a motion requesting a "protective filing" under Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005). On May 28, 2009, the Court granted Petitioner leave to withdraw the unexhausted claims, but denied Petitioner's request for a stay because he failed to demonstrate good cause for his failure to exhaust. On June 20, 2009, the Court granted Petitioner leave to amend the petition. On July 14, 2009, Petitioner filed a second amended petition, along with a motion requesting stay and abeyance. On August 20, 2009, the Court granted Petitioner's motion to stay. After filing several status reports, Petitioner filed a third amended petition on January 3, 2011.

DISCUSSION

I. Procedural Grounds for Motion to Dismiss Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court . . . ." The Advisory Committee Notes to Rule 5 of the Rules Governing Section 2254 Cases state that "an alleged failure to exhaust state remedies may be raised by the attorney general, thus avoiding the necessity of a formal answer as to that ground." The Ninth Circuit has referred to a respondent's motion to dismiss on the ground that the petitioner failed to exhaust state remedies as a request for the Court to dismiss under Rule 4 of the Rules Governing Section 2254 Cases. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (1991); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982). Based on the Rules Governing Section 2254 Cases and case law, the Court will review Respondent's motion for dismissal pursuant to its authority under Rule 4.

II. Exhaustion of State Remedies

A petitioner who is in state custody and wishes to collaterally challenge his 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, 111 S.Ct. 2546, 2554-55 (1991); Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988).

A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (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, 115 S.Ct. 887, 888 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (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, 115 S.Ct. at 888; Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). For example, if a petitioner wishes to claim that the trial court violated his due process rights "he must say so, not only in federal court but in state court." Duncan, 513 U.S. at 366, 115 S.Ct. at 888. A general appeal to a constitutional guarantee is insufficient to present the "substance" of such a federal claim to a state court. See Anderson v. Harless, 459 U.S. 4, 7, 103 S.Ct. 276 (1982) (Exhaustion requirement not satisfied ...


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