United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO GRANT
RESPONDENT’S MOTION TO DISMISSIN PART (DOC. 18) ORDER
DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY-ONE
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
respondent moves the Court to dismiss the petition as
unexhausted. The Court agrees that seven claims are
unexhausted but disagrees that the sixth claim is
unexhausted. Thus, the Court recommends the Court dismiss all
but the sixth claim as unexhausted.
instant petition was filed on July 13, 2015. (Doc. 1).
Concurrent with the petition, Petitioner filed a motion to
stay proceedings in order to exhaust issues in state court.
(Doc. 3). On August 6, 2015, the Court granted the stay and
ordered Petitioner to file regular status reports regarding
exhaustion. (Doc. 10). After filing a single status report on
August 15, 2015, Petitioner filed no further status reports.
Accordingly, the Court, on February 3, 2016, issued an order
to show cause why the stay should not be lifted. (Doc.
That order gave Petitioner thirty days within which to
respond. On April 19, 2016, Petitioner having never filed a
response to the order to show cause, the Court lifted the
stay and ordered a response. (Doc. 13). On June 17, 2016,
Respondent filed the instant motion to dismiss, arguing that
the petition did not contain any exhausted claims. (Doc. 18).
Petitioner did not file an opposition to the motion to
Procedural Grounds for Motion to Dismiss
mentioned, Respondent has filed a Motion to Dismiss the
petition because 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
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.
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.
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.
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).
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 ...