Singanonh v. Frauenheim

          FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S MOTION TO DISMISS FOR FAILURE TO EXHAUST [DOC. 9] [TWENTY-ONE DAY OBJECTION DEADLINE]

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He filed the instant petition on September 30, 2019, challenging his 2017 conviction in Fresno County Superior Court for receiving a stolen vehicle. On December 3, 2019, Respondent filed a motion to dismiss the petition as wholly unexhausted. On December 27, 2019, Petitioner filed an opposition to the motion. Because the petition is unexhausted, the Court will recommend that Respondent's motion to dismiss be GRANTED.

         DISCUSSION

         A. Procedural History

         On January 4, 2017, Petitioner was convicted in the Fresno County Superior Court of receiving a stolen vehicle (Cal. Penal Code § 496d(a)). (Doc. 10-1 at 1.) He was sentenced to a term of six years in state prison. (Doc. 10-1 at 1.)

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). (Doc. 10-2.) He raised one claim on appeal: The trial court abused its discretion when it denied his motion to strike the prior felony conviction allegation pursuant to People v. Superior Court (Romero), 13 Cal.4th 497 (1996). (Doc. 10-2.) On August 20, 2018, the Fifth DCA affirmed the judgment. (Doc. 10-2.)

         Petitioner submitted a number of documents to the Fifth DCA following its issuance of the opinion. He submitted a petition for rehearing on September 4, 2018. (Doc. 10-5 at 3.) The document was marked received but was not filed, and the Fifth DCA did not rule on it. (Doc. 10-5 at 3.) He submitted a letter on October 2, 2018, raising a claim of ineffective assistance of counsel. (Doc. 10-5 at 3.) The Fifth DCA advised Petitioner that its opinion was final as of September 17, 2018, and the court lacked jurisdiction to reconsider the decision. (Doc. 10-5 at 3.) Petitioner was advised that to the extent he wished to raise new issues such as ineffective assistance of counsel, he must do so by way of a petition for writ of habeas corpus. (Doc. 10-5 at 3.)

         On September 27, 2018, Petitioner filed a pro per petition for review in the California Supreme Court. (Doc. 10-3.) He raised the following four claims for relief: 1) Petitioner's confession was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1996); 2) The trial court should have reduced his crime to a misdemeanor “wobbler” offense because the fair market value of the vehicle was $300; 3) There was insufficient evidence that Petitioner was in possession of the stolen property; and 4) Detective Harrel committed perjury. (Doc. 10-3.) As noted by Respondent, the petition for review raised new claims and did not raise the one issue raised in the Fifth DCA.

         B. Exhaustion

         A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982).

         A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis).

         Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme Court reiterated the rule as follows:

In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners “fairly presen[t]” federal claims to the state courts in order to give the State the “opportunity to pass upon and correct alleged violations of the prisoners' federal rights” (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ...