United States District Court, E.D. California
ORDER TO SHOW CAUSE WHY PETITION FOR WRIT OF HABEAS
CORPUS SHOULD NOT BE DISMISSED SUMMARILY ECF No. 1 ORDER
DENYING PETITIONER'S MOTION FOR EMERGENCY HEARING AS MOOT
ECF No. 5
Rodolfo Hernandez, a federal prisoner without counsel,
petitioned for a writ of habeas corpus under 28 U.S.C. §
2241 on August 29, 2019. ECF No. 1. On November 4, 2019,
petitioner filed a motion requesting an emergency hearing.
ECF No. 5. The matter is before the court for preliminary
review under Rule 4 of the Rules Governing Section 2254
Cases, which the court may apply in all habeas proceedings.
See Rules Governing Section 2254 Cases, Rule 1(b);
cf. 28 U.S.C. § 2243. Under Rule 4, the court
must examine the habeas corpus petition and order a response
unless it “plainly appears” that the petitioner
is not entitled to relief. Because petitioner has failed to
state a claim for a violation of federal law and has failed
to exhaust his administrative remedies, I order petitioner to
show cause why his petition should not be dismissed summarily
and deny his petition for an emergency hearing as moot.
was charged with conspiracy to distribute narcotics in two
separate criminal cases, the proceedings of which ran
parallel to each other and were before the same judge.
See Hernandez v Rodolfo, No. 7:01-CR-00134-DC (W.D.
Tex. Nov. 15, 2001) [hereafter Hernandez I];
Hernandez v Rodolfo, No. 7:07-CR-00216-RAJ-2 (W.D.
Tex. Nov. 28, 2007) [hereafter Hernandez
II]. Petitioner entered guilty pleas in both
cases on January 17, 2008. See Hernandez I, at ECF
No. 102; Hernandez II, at ECF No. 170. Petitioner
was sentenced in both cases on April 3, 2018-to 60 months in
the first case and 210 months in the second. See Hernandez
I, at ECF No. 109; Hernandez II, at ECF No.
237. In his petition for habeas relief, petitioner argues
that the district court “lost jurisdiction” over
the Hernandez I case because it failed to read
petitioner's term of 60 months imprisonment aloud in open
court, allegedly violating 18 U.S.C. §
3553(c). ECF No. 1 at 3. Thus, petitioner claims
that the Bureau of Prisons' enforcement of this sentence
is erroneous. Id. at 5.
fails to state a cognizable habeas claim for two reasons: (1)
there is no clearly established federal law stating that a
term of imprisonment must be read aloud in court, and (2) a
sentencing judge's placement of the term of imprisonment
in the written judgment and on the docket's minute entry
are valid means of issuing the sentence. Additionally,
petitioner has failed to exhaust his administrative remedies.
because petitioner seeks federal habeas relief, this court is
limited to deciding whether the district court's action
“violated the Constitution, laws or treaties of the
United States.” Estelle v. McGuire, 502 U.S.
62, 67-68 (1991). Petitioner must allege a violation of
“clearly established federal law, ” meaning a
violation of a U.S. Supreme Court holding. See White v.
Woodall, 572 U.S. 415, 419 (2014). Petitioner's
reliance on United States v. Daddino, 5 F.3d 262,
266 (7th Cir. 1993), and United States v. McAffee,
832 F.2d 944, 946 (5th Cir. 1987), is misplaced. ECF No. 1 at
3-4. Neither Daddino nor McAffee constitute
“clearly established federal law, ” and both
address scenarios in which oral sentences differed from the
written judgments. See Daddino at 266;
McAffee at 946. Unlike Daddino and
McAffee, here petitioner claims only that there was
no oral pronouncement of the sentence.
no support in clearly established federal law for the
proposition that a failure to announce a term of imprisonment
in open court amounts to a constitutional violation. The
circumstances in Nguyen v. Macomber are analogous.
In Nguyen, the petitioner claimed a constitutional
violation where the verdict on one of his charges was not
read aloud in court. See Nguyen v. Macomber, No.
15-cv-00228-BLF, 2017 U.S. Dist. LEXIS 94216, at *53-54 (N.D.
Cal. June 19, 2017). No. constitutional rights violation was
found. Id. “While a trial by jury and an
actual jury verdict are rights compelled by the Sixth
Amendment, there is no clearly established federal law that
an oral verdict must be provided.” Id. The
court found that any possible ill effect on the petitioner
was harmless because the failure to read the verdict aloud
“did not render the trial fundamentally unfair.”
Id. at *54. Here, petitioner has failed to show that
any harmful effects-such as a fundamentally unfair
trial-resulted from the trial court's alleged failure to
read aloud his term of imprisonment.
petitioner's prison term was provided in a written
judgment, ECF No. 1 at 16, and was placed on the docket's
minute entry. Hernandez I, at ECF No. 109.
“The only sentence known to the law is the sentence or
judgment entered upon the records of the court.”
Hill v. United States, 298 U.S. 460, 464 (1936). In
a collateral attack on a sentence, “a court will close
its ears to a suggestion that the sentence entered in the
minutes is something other than the authentic expression of
the sentence of the judge.” Id. Here,
petitioner's April 3, 2008 sentence was placed on the
minute entry of the court's docket and stated that a
sentencing hearing was held before the judge. Hernandez
I, at ECF No. 109. This sentence is a public record that
petitioner may access through the court system. Petitioner
filed a copy of his written judgment, which he had in his
possession, with his habeas petition. ECF No. 1 at 16. The
written judgement was docketed April 7, 2008, four days after
the sentencing hearing, and contains the term of
imprisonment. Hernandez I, at ECF No. 110.
Petitioner's sentence written in the minute entry and
judgment is presumed to be the actual sentence of the court.
See Hill, 298 U.S. at 464.
petitioner has failed to exhaust his administrative remedies.
See Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th
Cir. 2001) (finding that in the ninth circuit habeas
petitioners under Section 2241 must exhaust their remedies
before filing a petition unless further appeals would be
futile). Petitioner presents proof of one unsuccessful
internal prison appeal and states without explanation that
further appeals “would be futile.” ECF No. 1 at
3. At this time, the court cannot determine that further
appeals would be futile and therefore cannot excuse
petitioner from failing to exhaust his remedies in the prison
further matter warrants the court's attention: Petitioner
has filed a motion for an emergency hearing on his habeas
petition. ECF No. 5. There is no right to an emergency
hearing in habeas proceedings; only under limited
circumstances are evidentiary hearings granted. See
28 U.S.C. § 2254(e)(2)(A)(ii). The court will not hold
an evidentiary hearing unless the petitioner's claim
relies on a new, retroactive rule of constitutional law that
was unavailable to him or a fact that he could not have
discovered through the exercise of due diligence.
Id.; see also Gonzalez v. Pliler, 341 F.3d
897, 903 (9th Cir. 2003) (determining that a habeas
petitioner must “allege facts which, if proven, would
entitle him to relief” and “show that he did not
receive a full and fair hearing in a state court either at
the time of trial or in a collateral proceeding” to be
granted an evidentiary hearing). Here, petitioner's
motion for an emergency hearing contains the same arguments
that appeared in his original habeas petition. Petitioner
does not rely on a new retroactive constitutional law or a
fact that he could not previously have discovered. Petitioner
has not alleged facts that would entitle him to relief or
shown that he did not receive a full and fair hearing in the
state court. Therefore, I deny petitioner's motion for an
1. Within thirty days from the date of service of this order,
petitioner must show cause as to why his petition should not
be dismissed for failure to state a claim and failure ...