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.

Martinez v. Secretary of Corrections

United States District Court, C.D. California

June 28, 2017

Richard Raymond Martinez
v.
Secretary of Corrections

          Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE.

          CIVIL MINUTES-GENERAL

         Proceedings: (In Chambers) Order To Show Cause Why This Action Should Not Be Dismissed For Failure To Exhaust And Failure To Name Proper Respondent

         I. INTRODUCTION

         On June 20, 2017, Petitioner Richard Raymond Martinez ("Petitioner"), an inmate at Ironwood State Prison, proceeding pro se, constructively filed[1] a Petition pursuant to 28 U.S.C. § 2254 ("Petition") naming the Secretary of Corrections of CDCR as the Respondent. See ECF Docket No. ("dkt.") 1, Petition. Petitioner challenges his 2014 convictions in the Los Angeles County Superior Court for aggravated sexual assault of a child, sodomy, rape, oral copulation, sexual penetration, forcible lewd act on a child, and prior convictions. Id. at 2. The Petition sets forth five grounds for habeas relief: (1) ineffective assistance of trial counsel ("Claim One"); (2) ineffective assistance of appellate counsel ("Claim Two"); (3) insufficient evidence ("Claim Three"); (4) admission of prior crimes evidence deprived Petitioner of his rights to due process ("Claim Four"); and (5) violation of Petitioner's due process right to confront witnesses ("Claim Five"). See Id. Petitioner acknowledges Claims One and Two are currently pending before the California Supreme Court for the first time in Petitioner's state habeas petition filed concurrently with the instant federal Petition. See id. at 21-22.

         Therefore, the Petition appears subject to dismissal because, (a) as indicated in the Petition, Petitioner has not exhausted his state remedies with respect to Claims One and Two; and (b) Petitioner has not named his immediate custodian as a respondent. The Court will not make a final determination regarding whether the federal Petition should be dismissed, however, without giving Petitioner an opportunity to address these issues.

         Accordingly, the Court hereby issues this Order to Show Cause why the Petition should not be dismissed, and specifically orders Petitioner to respond to the Order to Show Cause in writing no later than July 28, 2017. The Court further directs Petitioner to review the information that follows, which provides additional explanation as to why the federal Petition appears to be subject to dismissal and may assist Petitioner in determining how to respond.

         II. THE PETITION IS A MIXED PETITION SUBJECT TO DISMISSAL

         A state prisoner must exhaust his or her state court remedies before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). To satisfy the exhaustion requirement, a habeas petitioner must fairly present his or her federal claims in the state courts in order to give the State the opportunity to pass upon and correct alleged violations of the petitioner's federal rights. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam). A habeas petitioner must give the state courts "one full opportunity" to decide a federal claim by carrying out "one complete round" of the state's appellate process in order to properly exhaust a claim. O'Sullivan, 526 U.S. at 845.

         For a petitioner in California state custody, this generally means the petitioner must have fairly presented his or her claims in a petition to the California Supreme Court. See id. (interpreting 28 U.S.C. § 2254(c)); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (applying O'Sullivan to California). A claim has been fairly presented if the petitioner has both "adequately described the factual basis for [the] claim" and "identified the federal legal basis for [the] claim." Gathn, 189 F.3d at 888.

         The inclusion of both exhausted and unexhausted claims in a habeas petition renders it mixed and subject to dismissal without prejudice. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) ("In sum, because a total exhaustion rule promotes comity and does not unreasonably impair the prisoner's right to relief, we hold that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims.").

         Here, Petitioner concedes Claims One and Two were only presented to the California Supreme Court for the first time in a state habeas petition filed concurrently with the instant federal Petition. Pet. at 21-22. Therefore, it appears the California Supreme Court has not ruled on Claims One or Two, and thus those claims have not been exhausted. If this is correct, the Petition is a mixed petition and subject to dismissal without prejudice. See Rose, 455 U.S. at 522.

         III. THE PETITION FAILS TO NAME A PROPER RESPONDENT

         " [T]he proper respondent to a habeas petition is the person who has custody over the petitioner." Rumsfeld v. Padilla, 542 U.S. 426, 434, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) (internal quotation marks and brackets omitted). Thus, "the default rule is that the proper respondent is the warden of the facility where the prisoner is being held." Id. at 435; Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (as amended May 18, 1994) (holding the proper respondent in a habeas action is "typically... the warden of the facility in which the petitioner is incarcerated"); Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). The Ninth Circuit has held that the " [f]ailure to name the correct respondent destroys personal jurisdiction." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (as amended May 8, 1996).

         Here, the Petition improperly names "Secretary of Corrections CDCR" as Respondent. See Pet. Accordingly, the Petition is ...


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.