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Calderon v. Warden

United States District Court, C.D. California

December 18, 2019

WARDEN, Respondent.



         On December 2, 2019, the Clerk's Office received an eight-line unsigned letter from Nery Calderon (“Petitioner”), which attached four pages of documents that had been filed repeatedly in Petitioner's prior habeas action in this District. The Clerk's Office opted to treat the letter and attached pages as a 28 U.S.C. § 2254 habeas petition [Dkt. 1, “Petition”], even though it is unsigned, does not contain any of the information required to set forth in a Section 2254 habeas petition (see Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts), and does not plead any habeas claim for relief. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides that a petition for a writ of habeas corpus “must” be summarily dismissed “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Here, it plainly appears that the Petition - like Petitioner's prior habeas petitions described below - is fully unexhausted[1] and Petitioner is not entitled to a stay. Therefore, as explained below, this action must be dismissed.


         The instant Petition fails to provide any information about Petitioner's state conviction or any post-conviction proceedings. The Court, however, is familiar with Petitioner's state proceedings due to his prior actions in this District. In addition, pursuant to Rule 201 of the Federal Rules of Evidence, the Court has taken judicial notice of the dockets of the California Court of Appeal and the California Supreme Court available electronically, which contain the following information.

         In September 2016, Petitioner was convicted in Los Angeles County Superior Court No. VA132252 of five counts of lewd acts on a child under 14 and one count of sexual abuse of a child as to one of his victims, and of three counts of rape, one count of aggravated sexual assault of a child, one count of forcible lewd act on a child, and two counts of lewd act on a child as to his other victim. Through appellate counsel, Petitioner pursued a direct appeal, in which he raised a single claim, namely, that the trial court improperly admitted into evidence a police interview that allegedly was obtained in violation of Petitioner's rights under Miranda v. Arizona, 384 U.S. 436 (1966). The California Court of Appeal rejected the claim on its merits and affirmed the criminal judgment. [See May 25, 2017 decision in No. B277717.] Petitioner's appellate counsel then filed a petition for review with respect to this Miranda claim, which was denied on August 9, 2017 [No. S242211.]

         On July 30, 2018, Petitioner filed a pro se habeas petition in the California Court of Appeal, which was denied on July 31, 2018 [No. B291592]. On March 22, 2019, Petitioner filed a notice of appeal in the California Court of Appeal, by which he purported to appeal his above-noted September 2016 conviction for a second time. On April 4, 2019, the California Court of Appeal dismissed the putative appeal as an improper, impermissible, and untimely second appeal (No. B296454).

         The dockets for the California Supreme Court show that Petitioner's only filing in the state high court was his above-described direct appeal petitioner for review raising his Miranda claim. Petitioner has not sought habeas relief in the California Supreme Court.

         On September 11, 2018, Petitioner filed a 28 U.S.C. § 2254 habeas petition in this District in No. 2:18-cv-07914-SVW (GJS) (the “7914 Action”). On September 13, 2018, the original petition in the 7914 Action was dismissed with leave to amend, because it was incomplete, unsigned, failed to name a Respondent, and failed to state any habeas claim. On September 28, 2018, Petitioner filed a First Amended Petition in the 7914 Action and then, on October 4, 2018, filed a Second Amended Petition, which challenged Petitioner's Los Angeles Superior Court conviction in No. VA132252. On October 15, 2018, Petitioner was advised that the Second Amended Petition was fully unexhausted and of his attendant options. Petitioner thereafter filed multiple, duplicative motions seeking a Rhines stay, which were denied on February 28, 2019, and the 7914 Action was dismissed without prejudice for lack of exhaustion.

         After Petitioner initiated the 7914 Action, he filed a separate 28 U.S.C. § 2254 habeas petition in the United States District Court for the Northern District of California in late October 2018, which thereafter was transferred to this District and assigned No. 2:18-cv-10266-SVW (GJS) (the “10266 Action”). The petition in the 10266 Action - like the Second Amended Petition in the 7914 Action - challenged Petitioner's conviction in LASC No. VA132252 and raised essentially the same two claims, namely, that: Petitioner's daughters falsely accused him of molestation; and Petitioner was ill at the time of his state criminal proceedings and utilized an interpreter and, therefore, did not understand those proceedings. On January 22, 2019, the Court dismissed the 10266 Action as duplicative of the 7914 Action.

         Petitioner did not appeal the Judgments entered in the 7914 Action and the 10266 Action.


         Federal courts may not grant habeas relief to a person held in state custody unless the petitioner has exhausted his available state court remedies as to the issue(s) presented. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 518 (1982); Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005) (“We may review the merits of Petitioner's habeas petition only if he exhausted state court remedies.”). “[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (emphasis added); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (to give the State the chance to pass upon and resolve violations of his federal rights, a state prisoner must exhaust his available state remedies before seeking federal habeas relief).

         To satisfy the exhaustion requirement, a petitioner must “fairly present” his federal claim to the state courts, i.e., give them a fair opportunity to consider and correct violations of the prisoner's federal rights. See Duncan v. Henry, 513 U.S. 364, 365 (1995); Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) (en banc). A state prisoner seeking relief with respect to a California conviction is required to fairly present his federal claims to the California Supreme Court. See Baldwin, 541 U.S. at 29 (a state prisoner must fairly present his claim to a state supreme court having the power of discretionary review); Keating v. Hood, 133 F.3d 1240, 1242 (9th Cir. 1998).

         The state court record indicates that the only claim Petitioner may have exhausted is the Miranda claim raised on direct appeal. He has never attempted to raise that claim in this Court, instead asserting only the above-noted two claims. Because Petitioner has not filed a California Supreme Court habeas petition, any claims he raised in his July 2018 California Court of Appeal habeas petition, whether or not they included those two claims, necessarily are unexhausted. In the 7914 Action, the Court expressly advised Petitioner of his failure to exhaust and of its consequences. Nonetheless, following the dismissal of the 7914 Action for lack of exhaustion, Petitioner still has not ...

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