Ramirez v. Davey

          FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISSIN PART (DOC. 18) ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY-ONE DAYS

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         The 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.

         PROCEDURAL HISTORY

         The 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. 12).^[1] 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 dismiss.

         I. DISCUSSION

         A. Procedural Grounds for Motion to Dismiss

         As 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 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 (9^th 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 (9^th 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 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, 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 (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 ...