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Cisneros v. Robertson

United States District Court, N.D. California

September 5, 2019

MIGUEL A. CISNEROS, Petitioner,
v.
JIM ROBERTSON, Respondent.

          ORDER GRANTING MOTION TO DISMISS HABEAS PETITION FOR FAILURE TO EXHAUST STATE REMEDIES; DENYING REMAINING PENDING MOTIONS; DENYING CERTIFICATE OF APPEALABILITY RE: DKT. NO. 42

          HAYWOOD S. GILLIAM, JR., UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Petitioner, a state prisoner presently incarcerated in Pelican Bay State Prison, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed a motion to dismiss the amended petition for failure to exhaust state remedies, Petitioner has filed an opposition, Respondent has filed a reply, and Petitioner has filed a sur-reply. Dkt. Nos. 42, 44-47, 54. For the reasons set forth below, Respondent's motion to dismiss is GRANTED.

         DISCUSSION

         A. Procedural History

         In February 2016, a San Mateo County jury found Petitioner guilty of kidnapping in the commission of a carjacking, theft of another vehicle, resisting arrest, driving recklessly while trying to evade a police officer and “hit and run” driving. Petitioner was sentenced to an aggregate term of 21 years and 8 months to life in state prison. People v. Cisneros, C No. A148582, 2017 WL 4416819, at *1.

         Petitioner appealed his conviction on the ground that the trial court abused its discretion and violated state law in admitting evidence of his prior 2012 robbery to prove a common plan of robbing motorists at knife point. Cisneros, 2017 WL 4416819. On October 5, 2017, the state appellate court affirmed the conviction. Id. On November 13, 2017, Petitioner filed a petition for review in the California Supreme Court, again arguing that the trial court committed reversible error and violated California state law when it admitted evidence of his uncharged 2012 robbery. Ex. B.[1]

         On December 20, 2017, the California Supreme Court summarily denied review. Ex. C. On March 27, 2018, Petitioner initiated the instant action by filing a petition for a writ of habeas corpus. Dkt. No. 1. On August 7, 2018, the Court granted Petitioner leave to amend the petition. Dkt. No. 27. On August 17, 2018, Petitioner filed an amended petition. Dkt. No. 32. Per order filed October 23, 2018, the Court found that the amended petition stated the following cognizable claims: (1) the trial court erred in admitting evidence of a prior uncharged act of robbery; (2) there was insufficient evidence to support a conviction for kidnapping in the commission of a carjacking; and (3) the trial court erred in instructing the jury pursuant to CALCRIM 376. See Dkt. No. 37. On February 1, 2019, Petitioner filed a habeas petition in Santa Clara County Superior Court, raising these three claims. See Dkt. No. 53. On April 15, 2019, the Santa Clara County Superior Court denied the state habeas petition, finding that the claims failed to state a prima facie case for relief. Id.

         B. Legal Standard

         Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by providing the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b)-(c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). The exhaustion-of-state-remedies doctrine reflects a policy of federal-state comity to give the state “an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation and citation omitted). A federal district court must dismiss a federal habeas petition containing any claim as to which state remedies have not been exhausted. Rhines v. Weber, 544 U.S. 269, 273 (2005). The court generally may not grant relief on an unexhausted claim. See 28 U.S.C. § 2254(b)(1).

         The exhaustion requirement is satisfied only if a federal claim has been “fairly presented” to the state courts. Picard, 404 U.S. at 275. It is not sufficient to raise only the facts supporting the claim; rather, “the constitutional claim . . . inherent in those facts” must be brought to the attention of the state court. See Picard, 404 U.S. at 277. The state's highest court must “be alerted to the fact that the prisoners are asserting claims under the United States Constitution.” Duncan v. Henry, 513 U.S. 364, 365-66 (1995); see, e.g., Dye v. Hofbauer, 546 U.S. 1, 3-4 (2005) (finding federal due process claim based on prosecutorial misconduct fairly presented where text of brief cited Fifth and Fourteenth Amendments and federal cases concerning alleged violation of federal due process rights in context of prosecutorial misconduct).

         C. Analysis

         Respondent argues that the claims raised in the amended petition are unexhausted because none of them were presented to the California Supreme Court. Respondent further argues that the only claim presented to the California Supreme Court - that the trial court committed reversible error and violated California state law when it admitted evidence of Petitioner's uncharged 2012 robbery - is not raised in the amended petition and is not cognizable in federal habeas because it alleges state law error. Dkt. No. 42.

         Petitioner argues that his claims are exhausted for the following reasons: his state appellate attorney was appointed to handle his case up through the California Supreme Court; his state appellate attorney filed a petition for review for him in the California Supreme Court; the California Supreme Court's denial of a petition of review triggered the one-year deadline for filing a federal habeas petition; and his opening appellate brief and reply appellate brief both argued that it was error to allow evidence of the 2012 uncharged robbery, and that the alleged purpose for admitting the 2012 uncharged robbery was inconsistent with the jury instructions given. Dkt. No. 46. Liberally ...


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