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Title: Daryl Dwight Gray v. People of the State of California

February 25, 2013

TITLE: DARYL DWIGHT GRAY
v.
PEOPLE OF THE STATE OF CALIFORNIA, ET AL.



The opinion of the court was delivered by: Honorable Suzanne H. Segal, United States Magistrate Judge

CIVIL MINUTES - GENERAL

DOCKET ENTRY: ORDER TO SHOW CAUSE WHY (1) THIS ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST; (2) THIS ACTION SHOULD NOT BE DISMISSED FOR LACK OF JURISDICTION; AND (3) THIS COURT SHOULD NOT DEEM PETITIONER A VEXATIOUS LITIGANT

PRESENT: HONORABLE SUZANNE H. SEGAL, UNITED STATES MAGISTRATE JUDGE

Marlene Ramirez None None Deputy Clerk Court Reporter/Recorder Tape No. ATTORNEYS PRESENT FOR PETITIONER: ATTORNEYS PRESENT FOR DEFENDANT:

None Present None Present

PROCEEDINGS: (IN CHAMBERS)

On January 28, 2013,*fn1 Petitioner, a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody (the "Petition") pursuant to 28 U.S.C. § 2254. However, the Petition appears completely unexhausted on its face.

Petitioner is reminded that habeas petitioners are required to exhaust their claims in state court before seeking relief in federal court. See King v. Ryan, 564 F.3d 1133, 1138 (9th Cir. 2009). A petitioner can exhaust his claims by either (1) fairly presenting each federal claim to the highest state court or (2) showing that no state remedy is available. See Stokley v. Ryan, 659 F.3d 802, 810 (9th Cir. 2011) (holding petitioner's claims exhausted where "no state remedies [were] . . . 'available' to him") (quoting Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L. Ed. 2d 640 (1991)); Zichko v. Idaho, 247 F.3d 1015, 1021-22 (9th Cir. 2001) ("A habeas petitioner must present his claims to the highest state court in order to satisfy the exhaustion requirement of [AEDPA]."). Here, however, Petitioner admits that his federal claims are fully unexhausted. (See Petition at 5-6) (stating that Petitioner did not raise any of his federal claims on direct appeal to the California Court of Appeal, in a petition for review to the California Supreme Court, or in a habeas petition to the California Supreme Court). Accordingly, it appears that the Petition should be dismissed for failure to exhaust state remedies.

Further, even if Petitioner were somehow able to show that his claims are exhausted, it is unclear whether this Court has jurisdiction over the Petition. Title 28 U.S.C. § 2254 empowers the Court to "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court . . . on the ground that he is in custody in violation of the laws of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Court does not have jurisdiction if "it appears from the application that the applicant or person detained is not entitled thereto." See 28 U.S.C. § 2243; see also Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.

Here, Petitioner's claims appear to be moot. "Mootness is a jurisdictional question because the Court is not empowered to decide moot questions or abstract propositions . . . ." North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (internal quotation removed). If a wrong alleged in a habeas petition cannot be redressed, the petition is moot. See id. at 246-48. For example, a habeas petition attacking the length of a term of incarceration that already has been served may be denied as moot. Aaron v. Pepperas, 790 F.2d 1360, 1362 (9th Cir. 1986). Once a Petitioner's sentence has expired, "some concrete and continuing injury . . . -- some 'collateral consequence' of the conviction -- must exist if the suit is to be maintained." Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Notably, it is unclear whether Petitioner's sentence has expired. The instant Petition challenges an October 12, 2008 conviction for making threats in violation of California Penal Code Section 422. (Petition at 2). On the date of his conviction, Petitioner was sentenced to a term of eighteen months in prison. (Id.). The Petition does not specify whether Petitioner's sentence has expired. However, in a separate habeas petition filed with this Court on January 28, 2012, Petitioner challenges a March 13, 2012 conviction for the transportation, sale, and possession of a controlled substance. See Case No. 2:13-cv-00861-JVS-SS, Dkt. No. 1 at 2.

The acts underlying that conviction occurred in 2012. Id. at 18. It thus appears that Petitioner was not incarcerated in 2012 and that his 2008 sentence expired prior to when Petitioner filed the instant Petition. Accordingly, Petitioner's claim does not appear to confer habeas jurisdiction upon this Court. The court also notes that it is unclear whether Petitioner is even challenging his conviction. Petitioner wrote "M [sic] N/A" as his prayer for relief. (Petition at 8).

Finally, this Order places Petitioner on notice that the Court may recommend that a vexatious litigant order be issued that will impose pre-filing conditions upon Petitioner before he may file any further in forma pauperis applications and/or complaints. The Court takes judicial notice of Case No. 2:10-cv-08890-UA-SS in which the Chief District Judge issued an order finding that Petitioner previously had at least three cases dismissed as frivolous, malicious, or for failure to state a claim. See, e.g., United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (noting that courts "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue"). The Court also notes that Petitioner has filed at least eighteen (18) civil actions in the Central District of California since 2004, none of which have been resolved in his favor. Attached to this Order are documents indicating the case name and number of Petitioner's actions. This information is from the Central District of California docket. The Court takes judicial notice of Petitioner's prior filings, as reflected on the docket. See Fed. R. Evid. 201(c); see also Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995) (noting that the court may take judicial notice of matters of public record). None of these actions have resulted in a judgment favorable to Petitioner. Moreover, many of them have been dismissed as patently frivolous, malicious, or for failure to state a claim.

Central District of California Local Rule ("L.R.") 83-8 governs vexatious litigants. L.R. 83-8.3, "Findings," states that a vexatious litigant order "shall be based on a finding that the litigant to whom the order is issued has abused the Court's process and is likely to continue such abuse, unless protective measures are taken." See L.R. 83-8.3. This Court finds, as discussed more fully below, that Petitioner has abused the Court's process and is likely to continue such abuse, unless protective measures are taken.

The Ninth Circuit has set forth four factors that a court must examine before issuing a pre-filing order on a finding that someone is a vexatious litigant. Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1056-8 (9th Cir. 2007). In Molski, the court advised that district courts should enter a pre-filing order only after a "cautious ...


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