United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS THE PETITION (DOC. 10), DENY PETITIONER'S MOTION FOR RELIEF (DOC. 11), DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT LEAVE TO AMEND (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE
BARBARA A. McAULIFFE, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is Respondent's motion to dismiss the petition, which was filed on June 26, 2014. Petitioner filed opposition on July 10, 2014. Respondent filed a reply on July 17, 2014.
I. Proceeding by a Motion to Dismiss
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy , 521 U.S. 320, 327 (1997); Jeffries v. Wood , 114 F.3d 1484, 1499 (9th Cir. 1997).
A district court must award a writ of habeas corpus or issue an order to show cause why it should not be granted unless it appears from the application that the applicant is not entitled thereto. 28 U.S.C. § 2243. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) permits the filing of "an answer, motion, or other response, " and thus it authorizes the filing of a motion in lieu of an answer in response to a petition. Rule 4, Advisory Committee Notes, 1976 Adoption and 2004 Amendments. This gives the Court the flexibility and discretion initially to forego an answer in the interest of screening out frivolous applications and eliminating the burden that would be placed on a respondent by ordering an unnecessary answer. Advisory Committee Notes, 1976 Adoption. Rule 4 confers upon the Court broad discretion to take "other action the judge may order, " including authorizing a respondent to make a motion to dismiss based upon information furnished by respondent, which may show that a petitioner's claims suffer a procedural or jurisdictional infirmity, such as res judicata, failure to exhaust state remedies, or absence of custody. Id.
The Supreme Court has characterized as erroneous the view that a Rule 12(b)(6) motion is appropriate in a habeas corpus proceeding. See, Browder v. Director, Ill. Dept. of Corrections , 434 U.S. 257, 269 n. 14 (1978); but see Lonchar v. Thomas , 517 U.S. 314, 325-26 (1996). However, in light of the broad language of Habeas Rule 4, it has been held in this circuit that motions to dismiss are appropriate in cases that proceed pursuant to 28 U.S.C. § 2254 and present issues of failure to state a colorable claim under federal law, O'Bremski v. Maas , 915 F.2d 418, 420-21 (9th Cir. 1990); procedural default in state court, White v. Lewis , 874 F.2d 599, 602-03 (9th Cir. 1989); and failure to exhaust state court remedies, Hillery v. Pulley , 533 F.Supp. 1189, 1194 n.12 (E.D.Cal. 1982).
Analogously, a motion to dismiss a petition for failure to allege facts entitling a petitioner to relief in a proceeding pursuant to 2254, such as Respondent's motion in the instant case, is appropriate because a federal court is a court of limited jurisdiction which has a continuing duty to determine its own subject matter jurisdiction and to dismiss an action where it appears that the Court lacks jurisdiction. Fed.R.Civ.P. 12(h)(3); CSIBI v. Fustos , 670 F.2d 134, 136 n. 3 (9th Cir. 1982) (citing City of Kenosha v. Bruno , 412 U.S. 507, 511-512 (1973)); Billingsley v. C.I.R. , 868 F.2d 1081, 1085 (9th Cir. 1989).
Accordingly, the Court will consider Respondent's motion pursuant to Habeas Rule 4.
Further, because it was appropriate for Respondent to file a motion to dismiss in lieu of an answer, it will be recommended that the Court deny a motion filed by Petitioner for habeas relief (doc. 11, filed July 10, 2014) based on the Respondent's failure to file an answer.
A. The Petition
In the petition filed on April 25, 2014, Petitioner alleges that he is serving a sentence imposed in the Tuolumne County Superior Court. He challenges a disciplinary finding that he engaged in mutual combat in prison, alleging that he was denied his right to due process of law in connection with the disciplinary hearing by the admission of hearsay evidence, the absence of an invitation to Petitioner to give his version of the facts, the absence of evidence of mutual combat due to physical evidence reflecting injuries to Petitioner but only injuries to the hands of the alleged victim, and the use of an alleged admission made to Sergeant Cook when the officer had denied that Petitioner had made the admission. Petitioner also complains of the failure of the Tuolumne County Superior Court to return unspecified exhibits and of the absence of an evidentiary hearing in state court. (Pet., doc. 1 at 1-4.)
B. Petitioner's Sentence and Parole Status
Petitioner is serving an indeterminate sentence of nineteen years to life imposed in 1981 for murder and two counts of furnishing marijuana to a minor, or involving a minor in the sale or transport of marijuana, in violation of Cal. Health & Saf. Code § 11361. (Motn., exh. 1, doc. 10-1 [abstract of judgment].) It is undisputed that Petitioner's minimum eligible parole date (MEPD) passed long ago. There is no information given regarding why Petitioner has not been previously found suitable for parole.
Respondent moves to dismiss the petition on various grounds.
A. Failure to Exhaust State Court Remedies
First, Respondent argues that Petitioner failed to exhaust state court remedies as to his claims. Respondent relies on the order of the California Supreme Court denying Petitioner's petition for writ of habeas corpus with a citations to People v. Duvall , 9 Cal.4th 464, 474 (1995) and Ex Parte Swain , 34 Cal.2d 300, 304 (1949), which stand for the proposition that state prisoners must provide adequate factual support for their claims and that failure to do so will result in a procedural denial. Duvall , 9 Cal.4th at 474; Swain , 34 Cal.2d at 303-04. Respondent argues that because the state court explicitly and unambiguously relied on a procedural bar to deny Petitioner's claims, the claims are unexhausted.
With respect to each claim brought to this Court, a petitioner generally satisfies the exhaustion requirement by fully and fairly presenting the substance of the same claim to the highest state court in a manner sufficient to give the state court a fair opportunity to consider the claim. Picard v. Connor , 404 U.S. 270, 275-78 (1971); Scott v. Schriro , 567 F.3d 573, 582 (9th Cir. 2009). The substance of the claim is fairly presented where the pleading states the federal legal theory or basis of the claim and the facts entitling the Petitioner to relief. See, Picard v. Connor , 404 U.S. at 277-78. Further, a petitioner shall not be deemed to have exhausted the remedies available in the state courts within the meaning of § 2254 "if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). Thus, a petitioner fully and fairly presents a claim to the state courts if he presents the claim to the correct forum and in conformity with proper procedures. See, Castille v. Peoples , 489 U.S. 346, 351 (1989). Ordinarily a state prisoner does not "fairly ...