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.

Thomas v. Diaz

United States District Court, S.D. California

December 27, 2019

BRUCE THOMAS, Petitioner
v.
RALPH DIAZ, Secretary, California Department of Corrections & Rehabilitation, Respondent.

          REPORT AND RECOMMENDATION FOR ORDER DENYING RESPONDENT'S MOTION TO DISMISS [ECF NO. 4]

          Hon. Barbara L. Major United States Magistrate Judge.

         This Report and Recommendation is submitted to United States District Judge Marilyn L. Huff pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. On August 29, 2019, Petitioner Bruce Thomas, proceeding pro se, commenced these habeas corpus proceedings pursuant to 28 U.S.C. § 2254 by filing his Petition. ECF No. 1 (“Pet.”). That same day, the Court issued an Order Requiring Response. ECF No. 2. On October 29, 2019, Respondent filed a Motion to Dismiss the Petition for Writ of Habeas Corpus and a Notice of Lodgment. ECF Nos. 4 and 5 (“MTD”). Petitioner filed an opposition to the motion to dismiss and a Notice of Lodgment on November 4, 2019. ECF Nos. 6 (“Oppo.”) and 7. On November 8, 2019, the Court ordered Respondent to reply to Petitioner's opposition on or before November 22, 2019. ECF No. 8. In accordance with the Court's order, Respondent filed a reply on November 22, 2019. ECF No. 9 (“Reply”). On November 25, 2019, Petitioner submitted a Surreply that was accepted on discrepancy by the Court on December 2, 2019. ECF Nos. 10-11 (“Surreply). Petitioner challenges a condition of his probation stemming from his conviction for resisting arrest in 2014. Pet.

         For the reasons set forth below, the Court RECOMMENDS that Respondent's motion to dismiss for lack of exhaustion be DENIED.

         FACTUAL BACKGROUND

         Petitioner's mother, Ms. Thomas, lives in a duplex that shares a common wall with Ms. Weiss. Lodgment 1 at 3. The two women were close friends for more than twenty years until Petitioner and his wife moved into his mother's home in 2013. Id. That same year, Ms. Weiss obtained a civil restraining order to protect herself from Petitioner and Petitioner was ordered to stay two yards away from Ms. Weiss, her daughter, and her property. Id. Petitioner was arrested for violating the restraining order and resisting arrest in 2014. Id. Petitioner was found guilty of resisting arrest (a misdemeanor), but not guilty of violating the restraining order. Id.; see also MTD at 4. As a condition of his probation, Petitioner was ordered to stay two yards away from Ms. Weiss and her daughter. Lodgment 1 at 3. Petitioner blamed Ms. Weiss and her daughter for his arrest and the problems between them continued to escalate. Id. On September 1, 2016, Petitioner entered Ms. Weiss' property and yelled at her daughter for moving a potted plant to the side of her home. Id. at 2. This violation of Petitioner's condition of probation was recorded by Ms. Weiss' surveillance cameras. Id.

         SCOPE OF REVIEW

         Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a) (2006 & Supp. 2016).

         LEGAL STANDARD

         A federal court may not consider a petition for habeas corpus unless the petitioner has first presented his claims to the state courts, thereby “exhausting” them. 28 U.S.C. §2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 522 (1982). The exhaustion requirement is founded on federal-state comity, as only when the state court has been presented with the claim may it “pass upon and correct alleged violations of its prisoners' federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (quotation marks and citations omitted). Thus, exhaustion of a habeas petitioner's federal claims requires that they have been “fairly present[ed]” in each appropriate state court, including a state supreme court with powers of discretionary review. Baldwin v. Reese, 541 U.S. 27, 29 (2004). In California, this generally entails direct or collateral presentation to both the lower courts of appeal and the state supreme court, though presentation to the state supreme court alone may suffice. Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir. 1986); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). Claims are not exhausted by mere presentation to the state appellate system. A petitioner must also “alert [] [the state] court to the federal nature of the claim.” Baldwin, 541 U.S. at 29. A petitioner may indicate a federal claim by citing the source of federal law upon which he relies, or by merely labeling the claim as “federal.” Id. at 32. Where none of a petitioner's claims have been presented to the highest state court as required by the exhaustion doctrine, the Court must dismiss the petition. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).

         DISCUSSION

         Respondent contends that the Petition should be dismissed because it is unexhausted. MTD at 5. In his motion, Respondent argues lack of exhaustion because Petitioner failed to file a direct appeal in the California Supreme Court. Id. In his reply, Respondent acknowledges that California law prevented Petitioner from filing for review by the California Supreme Court, but asserts the claims are still unexhausted because Petitioner failed to file a habeas petition in the California Supreme Court. Reply at 1-2. Respondent does not provide any relevant law or legal analysis to support his assertion. Id.

         On June 20, 2017, Petitioner was convicted of violating Penal Code § 166(a)(4) for violating the 2014 condition of probation that required him to remain two yards away from Ms. Weiss and her daughter. Lodgment 1 at 2; see also Oppo. at 1. On June 22, 2017, Petitioner was sentenced, and his condition of probation was modified to ...


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.