United States District Court, E.D. California
AND RECOMMENDATION TO DENY, WITHOUT PREJUDICE, MOTION TO STAY
PETITION FINDINGS AND RECOMMENDATION TO DENY, WITHOUT
PREJUDICE, MOTION TO APPOINT COUNSEL ORDER DIRECTING CLERK OF
COURT TO ASSIGN DISTRICT COURT JUDGE TO MATTER (DOCS.
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
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 September 16, 2013
conviction from the Tulare County Superior Court for 26
counts including two counts of attempted murder, discharge of
a firearm at an inhabited dwelling, conspiracy, participation
in a criminal street gang, receipt of stolen property, and
narcotics offenses. (Pet., ECF No. 1.) In the petition, it
appears that Petitioner is presenting four claims for relief
based on claims previously presented to the California
Supreme Court in his direct appeals and collateral appeals in
the form of petitions for writs of habeas corpus.
petition, Petitioner asserted that all of the claims were
previously exhausted in state court. (See Pet. at 12
(Answering “Yes” to question 13 of the form
petition that asks if all grounds for relief have been
presented to the highest state court.).) Petitioner now moves
the Court to stay the petition while he pursues additional
claims that he is filing in the state courts. (Mot. to Stay,
ECF No. 3.) However, Petitioner does not describe the
additional claims he is attempting to bring in state court or
the status of any petitions presently filed before the state
Exhaustion of State Remedies
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. at 518.
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). 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 ...