United States District Court, E.D. California
ORDER TO SHOW CAUSE
ORDER GRANTING PETITIONER LEAVE TO AMEND PETITION TO NAME A PROPER RESPONDENT
(Doc. 11) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL (Doc. 9)
GARY S. AUSTIN, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636(c).
On June 20, 2014, Petitioner filed a second motion for appointment of counsel. On June 23, 2014, the Court denied Petitioner's first motion for appointment of counsel.
On August 8, 2014, the Court issued an order to show cause directing Petitioner to submit a signed declaration, and an order granting Petitioner leave to amend his petition to name a proper Respondent.
On September 5, 2014, Petitioner filed a motion to amend the petition to name a proper respondent and request relief. Petitioner stated that the Warden's name is W.L. Muniz. He also stated that he submitted the instant petition to the Court, and he signed the motion to amend under penalty of perjury. Petitioner's only statement regarding exhaustion was, "[m]y appealing attorney told me that the State affirmed my case."
A petitioner seeking habeas relief must name the state officer having custody of him as the respondent to the petition. Rule 2(a) of the Rules Governing Section 2254 Cases; Ortiz-Sandoval v. Gomez , 81 F.3d 891, 894 (9th Cir.1996); Stanley v. California Supreme Court , 21 F.3d 359, 360 (9th Cir.1994). Normally, the person having custody of the prisoner is the warden of the prison because the warden has "day to day control over" the prisoner. Brittingham v. United States , 982. F.2d 378, 279 (9th Cir.1992). Petitioner seeks to amend his petition to name the Warden of Salinas Valley State Prison, W.L. Muniz, as the Respondent. Therefore, Petitioner's request is proper.
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 (1991); Rose v. Lundy , 455 U.S. 509, 518 (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. Duncan v. Henry , 513 U.S. 364, 365 (1995); Picard v. Connor , 404 U.S. 270, 276 (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 , 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes , 504 U.S. 1, 8-10 (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; Lyons v. Crawford , 232 F.3d 666, 669 (9th Cir.2000), amended, 247 F.3d 904 (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, 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 ...