United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS.
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE.
was residing in prison when, according to the jury, he issued
a criminal threat against a staff person. Because of his
criminal history, he was sentenced to 25 years to life
imprisonment plus 7 years for his threat offense. This
federal habeas action followed petitioner's partially
successful attempt to exhaust his state court remedies.
seeks to dismiss this habeas corpus action because it is
comprised, in part, of unexhausted claims. (Respondent's
Motion to Dismiss, ECF No. 22). Although the undersigned
finds only Claim 2 and part of Claim 4 to be unexhausted,
these unexhausted claims are easily disposed of on the merits
via summary determination as set forth herein. Claim 4 is
actually a hybrid of a due process/double jeopardy claim. The
due process part is exhausted; the double jeopardy part is
not, but as stated, this latter part is subject to summary
dismissal. Therefore, respondent's motion to dismiss this
action based on unexhausted claims should be denied; however,
Claim 2 and the double jeopardy aspect of Claim 4 should be
summarily dismissed. Petitioner shall have an opportunity to
oppose the summary dismissal via objections to this Findings
and Recommendations if he so desires. This action should
proceed on Claim 1, 3, and the due process aspect of Claim 4.
on a Motion to Dismiss Unexhausted Claims
in this case protests the need to exhaust habeas claims with
the California Supreme Court. “Under the exhaustion
requirement, a habeas petitioner challenging a state
conviction must first attempt to present his claim in state
court.” Harrington v. Richter, 562 U.S. 86,
103 (2011); see also O'Sullivan v. Boerckel, 526
U.S. 838, 845 (1999) (“the exhaustion doctrine is
designed to give the state courts a full and fair opportunity
to resolve federal constitutional claims before those claims
are presented to the federal courts”). A petitioner
satisfies the exhaustion requirement by providing the highest
state court with a full and fair opportunity to consider all
claims before presenting them to the federal court.
Picard v. Connor, 404 U.S. 270, 276 (1971);
Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.
1985). For a California prisoner to exhaust, he must present
his claims to the California Supreme Court on appeal in a
petition for review or post-conviction petition for a writ of
habeas corpus in which he adequately describes the federal
Constitutional issue that he asserts was violated. See
Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999).
terms of construing the nature of claims in a pro se habeas
petition, the allegations are construed liberally, and
reasonable inferences are to be drawn in
petitioner's favor. Porter v. Ollison, 620 F.3d
952, 958 (9th Cir. 2010). While a federal court cannot invent
a claim out of liberal construction of a petition, and while
claims must be stated with sufficient particularity,
“[n]onetheless, a federal habeas petitioner adequately
pleads an otherwise ambiguous claim by making ‘clear
and repeated' references to an appended supporting brief
that presents the claim with sufficient particularity.
Dye v. Hofbauer, 546 U.S. 1, 4, 126 S.Ct. 5, 163
L.Ed.2d 1 (2005).” Barnett v. Duffy, 621
Fed.Appx. 496 (9th Cir. 2015). Put another way, courts should
look past a potentially, legally errant or ambiguous title of
a claim if the appended material makes clear what the claim
really comprises. See also, Frank v.
Arnold, 2019 WL 1643653 *3 (N.D. Cal. 2019) (reading the
petition somewhat liberally to understand the true claims).
case proceeds on the First Amended Petition
(“FAP”), filed after the undersigned ordered the
petition dismissed with leave to amend so that the claims
could be stated more clearly with references to exhaustion.
ECF No. 17. The FAP (ECF No. 19) lists the following four
1. Sufficiency of the Evidence for a Conviction of Criminal
Threats (albeit initially stated in the title as an
“unreasonable finding of facts” by the appellate
2.Ineffective Assistance of Advisory Counsel (with respect to
a plea bargain opportunity);
3.Denial of Right to an Impartial Jury (occasioned by the
substitution of jurors taking place after a suspension of
proceedings on account of a natural disaster); and
4Introduction of Prior Convictions as Evidence (violated
petitioner's Double Jeopardy protections and constituted
an evidentiary Due Process violation).Exhaustion