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Landa v. People

United States District Court, E.D. California

June 23, 2017

DANIEL J. LANDA, Petitioner,
v.
PEOPLE OF THE STATE OF CALIFORNIA, Respondent.

          ORDER DISMISSING PETITION AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY (ECF NO. 1) CLERK TO TERMINATE MOTIONS AND CLOSE CASE

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has consented to Magistrate Judge jurisdiction for all purposes. (ECF No. 4.)

         Petitioner challenges the December 27, 2016 judgment of the Kern County Superior Court. (Pet, ECF No. 1.) In his petition, Petitioner states that his notice of appeal was rejected by the Superior Court as untimely, (ki at 5, 8.) He indicates that he has not pursued any further appeal or petition regarding his conviction or sentence.

         On May 11, 2017, the Court ordered Petitioner to show cause why the action should not be dismissed for failure to exhaust state judicial remedies. (ECF No. 5.)

         Petitioner was warned that failure to respond would result in dismissal of the petition. Petitioner filed no response and the time for doing so has passed.

         I. Screening the Petition

         Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases; Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Otherwise, the Court will order Respondent to respond to the petition. Rule 5 of the Rules Governing § 2254 Cases.

         II. 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, 9 (1992) (factual basis).

         The instant petition reflects that Petitioner has not presented his claims to the highest state court. He was ordered to show cause why the petition should not be dismissed for failure to exhaust, and to address whether his claims had, in fact, been presented to the California Supreme Court. (ECF No. 5.) He failed to respond. Because the record before the Court reflects that Petitioner has not exhausted his state judicial remedies, the Court is unable to proceed to the merits of the claims. 28 U.S.C. § 2254(b)(1). The Court is required to dismiss the petition.

         III. Certificate of Appealability

         A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's dismissal of his petition; an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the ...

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