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Foster v. People

United States District Court, C.D. California, Western Division

May 2, 2018

JOSEPH WAYNE FOSTER, JR., Petitioner,
v.
THE PEOPLE OF THE STATE OF CALIFORNIA, Respondent.

          ORDER TO SHOW CAUSE RE: DISMISSAL OF HABEAS PETITION

          PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE

         Joseph Wayne Foster, Jr., (“petitioner”) initiated this action on April 4, 2018, by filing a document entitled “Notice of Appeal, ” which the Court has construed as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“Petition”).[1] It appears that petitioner is currently in custody pursuant to a California state court conviction in case number NA081482 and is housed at California State Prison, Los Angeles County in Lancaster, California. (Petition at 1, 12[2]). Petitioner in the instant Petition appears to challenge the Los Angeles County Superior Court's denial of his motion for resentencing. Specifically, petitioner states that he “appeals from the judgment of the court denying [his] motion for resentencing[/]sentencing modification . . . without prejudice. Said judgment was entered on 02/27/18 by the [H]onorable Judge Gary J. Ferrari, a Superior Court of California, County of Los Angeles Judge.” (Petition at 1).

         The Court notes that, in 2015, in Case No. CV 15-2826-JGB (JCG), petitioner filed a prior habeas petition challenging his conviction in case number NA081482 (the “2015 Petition”). In the 2015 Petition, petitioner stated that he was convicted on October 19, 2009, in the Los Angeles County Superior Court of one count of first degree burglary (Cal. Penal Code § 459), and was sentenced to thirty-five years to life. (Case No. CV 15-2826, ECF No. 1 at 1). He raised claims of ineffective assistance of counsel, instructional error, and prosecutorial misconduct. The 2015 Petition was denied as barred by the statute of limitations, and on July 6, 2015, judgment was entered dismissing the 2015 Petition with prejudice. (Case No. CV 15-2826, ECF Nos. 5, 10, 11).

         II. DISCUSSION

         A. EXHAUSTION

         In the instant Petition, petitioner challenges the superior court's denial of his motion for resentencing by alleging that the superior court, in sentencing petitioner to thirty-five years to life under the Three Strikes Law, violated California Penal § Code 667(a)(2), California Rule of Court 425(b), and the due process clauses of the Fifth and Fourteenth Amendments. (Petition at 3).

         As a matter of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has exhausted the available state judicial remedies on every federal claim presented in the petition. Rose v. Lundy, 455 U.S. 509, 518-22, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The habeas statute explicitly provides that a habeas petition brought by a person in state custody “shall not be granted unless it appears that -- (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1).

         Exhaustion requires that petitioner's contentions be fairly presented to the state supreme court even if that court's review is discretionary. O'Sullivan v. Boerckel, 526 U.S. 838, 845-47, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); James v. Giles, 221 F.3d 1074, 1077, n.3 (9th Cir. 2000). Petitioner must give the state courts “one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process” in order to exhaust his claims. O'Sullivan, 526 U.S. at 845. A claim has not been fairly presented unless the prisoner has described in the state court proceedings both the operative facts and the federal legal theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996); Bland v. Cal. Dep't of Corr., 20 F.3d 1469, 1473 (9th Cir. 1994), overruled on other grounds by Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000). Petitioner has the burden of demonstrating that he has exhausted available state remedies. See, e.g., Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982).

         Here, there is no indication that petitioner has exhausted any claim he raises in the instant Petition. Accordingly, the Petition is subject to being dismissed without prejudice as unexhausted. Greenawalt v. Stewart, 105 F.3d 1268, 1271, 1273-75 (9th Cir. 1997).

         B. SECOND OR SUCCESSIVE PETITIONS

         A federal habeas petition is successive if it raises claims that were or could have been adjudicated on the merits in a previous petition. Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam). The AEDPA provides that a claim presented in a second or successive federal habeas petition that was not presented in a prior petition shall be dismissed unless:

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would ...

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