United States District Court, E.D. California
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 ...