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Hubbard v. Gipson

United States District Court, E.D. California

January 20, 2015

ZANE HUBBARD, Petitioner,
v.
CONNIE GIPSON, Respondent.

ORDER GRANTING PETITIONER'S MOTION TO AMEND (Doc. 21) FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS (Doc. 20) ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY-ONE DAYS

JENNIFER L. THURSTON, Magistrate Judge.

Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

The instant petition was filed on October 23, 2013. (Doc. 1)("the original petition"). On November 14, 2013, the Court ordered Respondent to file a response. (Doc. 7). On December 6, 2013, before Respondent filed his response, Petitioner filed a first amended petition raising four claims: (1) use of a tainted photographic lineup; (2) admission of unreliable evidence from witness, Christina Silva; (3) ineffective assistance of counsel in representing Petitioner based on multiple reasons; and (4) an omnibus claim of prosecutorial misconduct on various grounds. (Doc. 9)("FAP").

On April 21, 2014, Respondent filed the instant motion to dismiss the petition for lack of exhaustion as to claims three and four. (Doc. 20).[1] On April 23, 2014, the Court became aware that Petitioner had, on April 11, 2014, filed yet another habeas petition in this Court in case number 1:14-cv-00509-LJO-SAB ("14-509"). As required by Woods v. Carey, 525 F.3d 886, 888-890 (9th Cir. 2008), the Court was obligated to treat this not as a new or successive petition but as a motion to amend the pleadings. (Doc. 21). By order dated April 23, 2014, the Court directed the Clerk of the Court to docket the petition in case number 14-509 as a motion to amend in this case. (Doc. 22). On May 2, 2014, Petitioner filed a document entitled "Traverse, " which the Court construes to be an opposition to the motion to dismiss. (Doc. 24). In this Order, the Court will grant the motion to amend the claims to include the claims raised in case no. 14-509 ("the subsequent petition") and, in the following discussion, will then examine whether all operative claims in the first amended petition and in the subsequent petition have been fully exhausted in state court.

DISCUSSION

A. Procedural Grounds for Motion to Dismiss

As mentioned, Respondent has filed a motion to dismiss the petition, contending that it contains unexhausted claims. 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...." Rule 4 of the Rules Governing Section 2254 Cases.

The Ninth Circuit has allowed Respondent's to file a Motion to Dismiss in lieu of an Answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a Respondent can file a Motion to Dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F.Supp. at 1194 & n. 12.

In this case, Respondent's Motion to Dismiss is based on Respondent's contention that Petitioner has never presented his claims to the California Supreme Court. Accordingly, the Court will review Respondent's Motion to Dismiss pursuant to its authority under Rule 4. O'Bremski, 915 F.2d at 420.

B. Exhaustion.

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 and gives the state 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, 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; 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 ...


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