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Joseph P. Morvan v. Matthew Cate

November 28, 2012

JOSEPH P. MORVAN, PETITIONER,
v.
MATTHEW CATE,
RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner, a prisoner incarcerated at the Tallahatchie County Correctional Facility in Tutwiler, Mississippi, is proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Therein, petitioner challenges the thirteen year state prison sentence imposed on May 10, 2010, following his entry of plea pursuant to plea agreement in the Tehama County Superior Court on drug trafficking charges. (Doc. No. 1 at 1-2.) Specifically, petitioner claims that a three year sentencing enhancement for a prior term of probation was unlawfully imposed as part of his sentence even though he had successfully completed the term of that probation. (Id. at 4.)*fn1

Before the court is respondent's motion to dismiss this action due to petitioner's alleged failure to first exhaust his claims for habeas relief in state court as required by 28 U.S.C. § 2254(b). Petitioner has failed to file an opposition to the motion despite the court's July 19, 2012 order granting him additional time to file and serve that opposition. (Doc. No. 15.)*fn2

I. Respondent's Argument (Doc. No. 13)

Respondent argues that petitioner's sole claim for federal habeas relief was presented in a habeas petition filed with the California Supreme Court but that state petition was denied with citations to People v. Duvall, 9 Cal. 4th 464, 474 (1995) and In re Swain, 34 Cal. 2d 300, 304 (1949). Respondent contends that the cases cited by the California Supreme Court in denying relief stand indicate that petitioner failed to present the claim with sufficient particularity and supporting evidence. Respondent argues that because petitioner had the opportunity to cure those deficiencies and refile his petition, his habeas petition filed with the California Supreme Court did not satisfy the exhaustion requirement.

II. Petitioner's State and Federal Habeas Petitions

In his pending federal habeas petition, petitioner presents one claim: Ground one: The State imposed an enhancement on a prior probation term which violated petitioners [sic] 5th and 14th Amendments.

Supporting FACTS: The court imposed a 3 yr enhancement for a prior probation term. Petitioner had already completed the probation successfully before the instant case arose. The enhancement is illegal and violates the due process clause under the United States Constitution 14 [sic] Amendment. (Doc. No. 1 at 4.)

In his habeas petition filed with the California Supreme Court, petitioner presented essentially this same claim, stated there as follows:

Ground 1: Petitioners [sic] 5th and 14th Amendment rights under due process were violated because his sentence was enhanced for a prior probation term, this probation term was completed successfully making the enhancement illegal.

Supporting facts: Petitioners [sic] sentence was illegally enhanced based on prior convictions which were unconstitutional. The sentence is excessive - based on greater punishment than the legislature intended, this violated petitioners [sic] due process at sentencing. Petitioner is contending that his guilty plea and its consequences which was also a violation of his due process rights. The prior conviction was determined by state procedure that violates due process. Petitioner is requesting the court to re-examine his sentence to be sure its [sic] legal and conforms with the due process clause under the United States Constitution of the United States of America. U.S.C.A. 5, 14.

(Lod. Doc. 2 at 3.)

III. Analysis

A. The Exhaustion Requirement

State courts must be given the first opportunity to consider ...


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