United States District Court, E.D. California
DISCHARGING ORDER TO SHOW CAUSE DATED MAY 9, 2017 [Doc. 9]
ORDER DIRECTING CLERK OF COURT TO FILE SECOND AMENDED
PETITION [Doc. 12] ORDER SUMMARILY DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS FOR FAILURE TO STATE A CLAIM ORDER
DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE
ORDER DECLINING ISSUANCE OF CERTIFICATE OF
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
FEDERAL COURT PROCEDURAL BACKGROUND
filed a petition for writ of habeas corpus on April 5, 2017.
(Doc. 1.) He filed a first amended petition on April 20,
2017, along with a consent/decline form indicating he
consented to the jurisdiction of the Magistrate Judge
pursuant to 28 U.S.C. § 636(c). (Doc. 7, 8.)
conducting a preliminary screening of the petition, it
appeared that Petitioner's sentence had been served and
the Court was without jurisdiction to entertain the petition.
Therefore, on May 9, 2017, the Court issued an order
directing Petitioner to show cause why the petition should
not be dismissed for lack of jurisdiction. (Doc. 9.) On May
30, 2017, Petitioner responded to the order to show cause and
set forth the terms of his sentence which included a
probation term of five years imposed on October 28, 2014.
(Doc. 10, 11.) As it appears Petitioner is currently serving
a probation term, the Court has jurisdiction to consider the
petition. Accordingly, the order to show cause will be
May 30, 2017, Petitioner submitted a Second Amended Petition
which has been lodged with the Court. (Doc. 12.) Pursuant to
Fed.R.Civ.P. 15(a)(1), a party may amend its pleading once as
a matter of course. Further amendments are permitted only
with the opposing party's consent or the court's
leave. Here, Petitioner has already amended his pleading
once; therefore, he may file the Second Amended Petition only
with leave of court. Rule 15(a)(2) states that leave should
be freely given when justice so requires. In the interest of
justice, the Court will order the Second Amended Petition to
review of the Second Amended Petition, the Court finds that
Petitioner fails to present a cognizable claim for relief.
For the reasons below, the Court will SUMMARILY DISMISS the
STATE COURT PROCEDURAL HISTORY
December 30, 2010, Petitioner was convicted in the Tuolumne
County Superior Court of felony diversion of funds (Cal.
Penal Code §484b). (Doc. 11 at p. 2.) On March 9, 2011,
he was sentenced to sixty days in jail, five-year's
probation, and restitution in the amount of $28, 027.42.
(Id.) Thereafter, the Office of the California
Attorney General filed a motion with the trial court seeking
an order revoking Petitioner's contractor's license
pursuant to Cal. Bus. & Professions Code section 7106.
(Doc. 12, Ex. 8 at p. 12.) Following a hearing on the matter,
the trial court ordered the petitioner's license revoked.
(Id. at p. 13.) Petitioner then completed his jail
term, and his probation was transferred to Alameda County
where he resided thereafter. (Doc. 11 at p. 2.)
appealed to the California Court of Appeal, Fifth Appellate
District (“Fifth DCA”). On August 6, 2013, the
Fifth DCA reversed the judgment as well as the order revoking
Petitioner's contract license. (Doc. 12, Ex. 8.) The
matter was “remanded for possible retrial, and
rehearing under [California] Business and Professions Code
section 7106.” (Id. at p. 20.)
October 25, 2013, the trial court held a hearing after
remittitur on appeal. (Doc. 12, Ex. 1.)
was retried and found guilty in Tuolumne County Superior
Court on September 25, 2014, of diversion of construction
funds, a felony, pursuant to Cal. Penal Code § 484b.
(Doc. 12, Ex. 3 at p. 2.) On October 28, 2014, he was
sentenced to serve sixty days in jail, with credit for time
served of thirty actual days. (Doc. 10 at p. 5.) The sentence
was suspended and Petitioner was admitted to probation for
five years. (Id.) In addition, he was ordered to pay
restitution in the amount of $28, 072.42. (Id.)
Further, it was ordered that his contractor's license be
revoked. (Id. at p. 6.)
appealed to the Fifth DCA, and the judgment was affirmed on
November 28, 2016. (Doc. 12, Ex. 3.) He filed a petition for
review in the California Supreme Court, and the petition was
denied on February 15, 2017. (Doc. 12, Ex. 5.)
Preliminary Review of Petition
of the Rules Governing Section 2254 Cases requires the Court
to make a preliminary review of each petition for writ of
habeas corpus. The Court must summarily dismiss a petition
“[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief . . . .” Rule 4; O'Bremski v.
Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory
Committee Notes to Rule 8 indicate that the Court may dismiss
a petition for writ of habeas corpus, either on its own
motion under Rule 4, pursuant to the respondent's motion
to dismiss, or after an answer to the petition has been
Failure to State a Cognizable Federal Claim
presents six claims for relief: 1) The trial court erred in
using an Ex Parte Order to re-open the same issues that were
previously resolved by the appellate court; 2) The trial
court failed to resolve the four issues identified on appeal
in Petitioner's retrial on September 17, 2014; 3) The
appellate court erred in stating Petitioner did not file
opposition papers; 4) The trial court failed to give
unanimity instructions; 5) The trial court erred in failing
to give limiting instructions when the petitioner's bank
records were introduced before the jury over his objection;
and 6) Petitioner's Fifth Amendment rights were violated
by being placed twice in jeopardy for the same offense. Upon
review of these claims, it is apparent Petitioner fails to
state a cognizable federal claim. For the reasons that
follow, the Court will dismiss the petition.
Order After Remittitur
references the appellate court's opinion on the initial
appeal wherein the court ordered “[t]he judgment and
the order revoking defendant's license are reversed in
their entirety.” (Doc. 12 at p. 5.) Petitioner
complains that the trial court issued an order setting the
matter for hearing following remittitur and then held a
hearing in which Petitioner was re-charged with Cal. Penal
Code section 484b. He was subsequently found guilty in a jury
trial. He claims this was in error since the issue of his
conviction under 484b had already been settled by the
apparently misunderstands the appellate process. As
Petitioner notes, the appellate court reversed the judgment
in its entirety and “remanded [the matter] for possible
retrial, . . . .” (Doc. 12, Ex. 8 at p. 20.)
Subsequently, the appellate court issued a remittitur which
transferred the case back to the trial court. See In re
Anna S., 180 Cal.4th 1489, 1500 (2010). The remittitur
effectively terminated the appellate court's jurisdiction
over the case and revested jurisdiction in the trial court.
Snukal v. Flightways Mfg, Inc., 23 Cal.4th 754, 774
(2000). Per California procedure, following issuance of the
remittitur, all further proceedings took place in the trial
court. Thus, there was nothing improper in the trial court
issuing an order to set the matter for hearing following
complains that he should not have been retried, but his
argument is plainly meritless. The appellate court's
remittitur specified that the matter was being remanded for
possible retrial. Therefore, the trial court acted within the
scope of its jurisdiction in conducting a retrial. Petitioner
contends that the retrial should have been limited to whether
he violated Cal. Bus. & Professions Code section 7106,
but this is clearly a misreading of the appellate court's
order. The court stated, “The matter is remanded for
possible retrial, and possible rehearing under Business
and Professions Code section 7106.” (Doc. 12, Ex.
8 at p. 20.) The remand obviously concerned two separate
proceedings: 1) a retrial on possible criminal charges
including a violation of Cal. Penal Code section 484b; and 2)
a rehearing under section 7106 concerning revocation of his
contractor's license. Petitioner appears to imply that
the language following “rehearing” also applies
to the retrial, but this is illogical. First, the revocation
of the contractor's license under section 7106 is not a
criminal proceeding and does not proceed to a criminal trial.
Rather, it involves, as it did in the previous trial court
proceedings, a separate hearing following conviction. Second,
the appellate court's discussion immediately preceding
the order clearly detailed the two separate proceedings and
clarified that the remittitur concerned the two distinct
proceedings. Indeed, the paragraph before the disposition was
titled “The Order Revoking Defendant's Contractors
License Must Be Reversed Along With The Conviction.”
(Id.) Therefore, Petitioner's argument that the
appellate court's order barred retrial under section 484b
is plainly without merit.
addition, the claim is unexhausted. 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).
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). 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. 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 be or how
obvious the violation of federal law is.
Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir.
2000), as amended by Lyons v. Crawford, 247 F.3d
904, 904-5 (9th Cir. 2001).
Court has reviewed the petitions for review filed with the
California Supreme Court. The instant claim was not presented
and is therefore unexhausted and should be dismissed.
Rose v. Lundy, 455 U.S. 509, 521-22 (1982).
Nevertheless, as discussed above, the claim is plainly
without merit. The Court is authorized to deny the claim
notwithstanding the failure to exhaust. See 28
U.S.C. § 2254(b)(2).
State Law Issue
basic scope of habeas corpus is prescribed by statute. Title
28 U.S.C. § 2254(a) states:
The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to a
judgment of a State court only on the ground that he is
in custody inviolation ...