Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Silva v. Soto

United States District Court, E.D. California

March 6, 2017

ANTHONY SILVA, Petitioner,
v.
A. SOTO, Warden, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY MOTIONS TO STAY (Docs. 8, 22, 27)

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a November 8, 2012 conviction from the Fresno County Superior Court for two counts of second degree attempted murder, discharging a firearm at an occupied vehicle, second degree robbery, and various enhancements. (Pet., ECF No. 1.) Petitioner filed his federal petition for writ of habeas corpus on February 16, 2016 presenting the following six claims for relief: (1) that the prosecution committed misconduct in presenting false testimony and allowing false testimony to go uncorrected, (2) that appellate counsel was ineffective for failing to present the prosecutorial misconduct claim on appeal, (3) that trial counsel was ineffective based on his examination of Petitioner during trial, (4) that the prosecution committed misconduct by presenting improper argument during closing, (5) that the prosecution committed misconduct by misstating and shifting the burden of proof to Petitioner, and (6) insufficient evidence. (See Pet., ECF No. 1.)

         On February 19, 2016, the Court screened the petition, and ordered Respondent to file a response. (ECF No. 5.) Respondent filed an answer to the petition on June 20, 2016. (ECF No. 20.) However, Petitioner moved the Court to stay the petition in light of the fact that he has a pending appeal of the denial of his post-conviction request for DNA testing under Cal. Penal Code § 1405. (ECF Nos. 8, 22, 27.)

         Petitioner requests that the instant matter be stayed pending the outcome of his state appeal. On September 2, 2016, Respondent filed an opposition to the motions to stay. (ECF No. 25.) Respondent notes that Petitioner has not asked to add additional claims to his federal petition, and that all of the claims presented in the petition have previously been exhausted. (Id.) Respondent further notes that the request for DNA testing is a matter of state law. Further, should the appeal result in new evidence beneficial to Petitioner, he may present a new or additional claim with this Court after exhaustion of the claim in state court. (Id.)

         II. Legal Standards

         A. Exhaustion of State Remedies

         The exhaustion of available state remedies is a prerequisite to a federal court's consideration of claims presented in habeas corpus proceedings. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); 28 U.S.C. § 2254(b). 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).

         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). 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). 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 that would control resolution of the claim on federal grounds. Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . .
In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.