United States District Court, S.D. California
REPORT AND RECOMMENDATION FOR ORDER DENYING
RESPONDENT'S MOTION TO DISMISS [ECF NO. 4]
Barbara L. Major United States Magistrate Judge.
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.
reasons set forth below, the Court
RECOMMENDS that Respondent's motion to
dismiss for lack of exhaustion be DENIED.
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.
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).
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).
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.
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 ...