Opinion
NO. EDCV 14-1485-JFW (MAN)
07-24-2014
FRANCIS XAVIER LUCERO, Petitioner, v. STATE OF CALIFORNIA, et al., Respondents.
ORDER: DISMISSING PETITION WITHOUT
PREJUDICE; AND DENYING CERTIFICATE
OF APPEALABILITY
On July 18, 2014, Petitioner, a California prisoner, filed a 28 U.S.C. § 2254 habeas petition (Petition"). Petitioner alleges that he is in custody pursuant to a conviction sustained, and sentenced imposed, in Riverside Superior Court Case No. RIF141320, although he does not remember the date his sentence was imposed or its terms, nor does he identify the crime(s) of which he was convicted. The allegations of the Petition are confusing, as is the nature of Petitioner's federal habeas claims. Petitioner appears to contend that: he was "illegally arrested" on a DUI charge, even though there was "no victim"; he was subjected to an illegal search and seizure; while held in jail, he was assaulted and injured by other inmates, yet he was charged with assault with force likely to produce great bodily injury, even though no one sustained great bodily injury; his counsel failed to make "motions to demurrer & suppress"; and his sentence has been enhanced illegally. Petitioner also appears to be challenging a separate conviction sustained by a "witness" named Robin Gillen Starr in Yolo County, California.
A number of problems with the Petition are readily apparent. As a pro se prisoner, Petitioner may not pursue habeas or any relief on behalf of others, including Mr. Starr. See, e.g., C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987) (a layperson acting in pro per may not appear or seek relief on behalf of others); McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966) (same); Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962) ("A litigant appearing in propria persona has no authority to represent anyone other than himself.") (per curiam); see also Local Rule 83-2.10.2. As Petitioner is incarcerated at Salinas Valley State Prison, the only appropriate Respondent is the Warden of that facility (R.T.C. Grounds). See Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts; Smith v. Idaho, 392 F.3d 350, 354-55 (9th Cir. 2004); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Petitioner has named numerous inappropriate Respondents, however, including the State of California, its Governor and Attorney General, the Secretary and the Chief Medical Officer of the California Department of Corrections & Rehabilitation, and someone named "A.W.R. Binkele." Moreover, as Petitioner has violated Local Rule 83-16.1 and Rule 2(d) of the Rules Governing Section 2254 Cases in the United States District Courts by failing to use the Section 2254 habeas petition form required to be used in this District, he has failed to provide the information required so that the Court can assess whether the Petition is facially timely and exhausted.
Even if Petitioner could seek habeas relief on Mr. Starr's behalf and/or jointly with him, this district is not the correct venue for a federal habeas challenge to a conviction sustained in Yolo County, California, which is located within the jurisdictional boundaries of the United States District Court for the Eastern District of California.
Although leave to amend would allow Petitioner to omit the portion of the Petition that seeks relief on behalf of third party Starr and to correct the other above-noted defects, granting him leave to amend would be futile and inappropriate. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides that a petition for 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." Rule 4 summary dismissal is required here, because it plainly appears that the Petition is unexhausted.
The Court may raise exhaustion problems sua sponte. Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir. 1998); Stone v. City and County of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992).
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 each of the issues presented. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 518, 102 S. Ct. 1198, 1203 (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, 119 S. Ct. 1728, 1732 (1999) (emphasis added); see also Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 1349 (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, 115 S. Ct. 887, 888 (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, 124 S. Ct. at 1349 (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).
Petitioner alleges that he appealed his conviction through Case No. B256351, which he filed in the California Court of Appeal. The Court has reviewed the dockets for the California Supreme Court and the California Court of Appeal, which are available electronically, and takes judicial notice of their contents pursuant to Rule 201 of the Federal Rules of Evidence. A search of those dockets shows that Petitioner has not filed any proceeding in the California Supreme Court. He did file a habeas petition related to Superior Court Case No. RIF141320 in the California Court of Appeal, Second Appellate District (Case No. B256351) on May 20, 2014, which was denied without prejudice on June 2, 2014, so that Petitioner could present the petition to the Fourth Appellate District, which is the appropriate California Court of Appeal given that his conviction was sustained in Riverside County. There is no record indicating that Petitioner has filed a habeas petition in the California Court for Appeal, Fourth Appellate District. Thus, Petitioner has not exhausted his present claims, because they have not been considered by any California Court of Appeal and, critically, they have not been presented to the California Supreme Court.
See http://appellatecases.courtinfo.ca.gov.
Accordingly, the instant Petition is unexhausted, because Petitioner did not present his claims to the California Supreme Court before he sought federal habeas relief. Because the Petition is fully unexhausted, it must be dismissed without prejudice. Rose, 455 U.S. at 522, 102 S. Ct. at 1205.
Under prevailing law, a fully unexhausted federal habeas petition may not be stayed and must be dismissed. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding that a fully unexhausted petition may not be stayed and observing: "Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to the petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust."); Jones v. McDaniel, 320 Fed. Appx. 784, 786 (9th Cir. 2009) (affirming the dismissal of a fully unexhausted petition and denial of a stay, because a "Rhines stay is only available for a mixed habeas petition where at least some of the claims have been exhausted, and none of [petitioner's] claims were exhausted"); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (a district court is '"obliged to dismiss immediately'" a petition that contains no exhausted claims) (citation omitted).
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For the foregoing reasons, it is plain from the face of the Petition that summary dismissal of the Petition is required, because it is unexhausted. Accordingly, IT IS ORDERED that: the Petition is dismissed, without prejudice, for failure to exhaust available state remedies; and Judgment shall be entered dismissing this action without prejudice.
In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has considered whether a certificate of appealability is warranted in this case. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000). The Court concludes that a certificate of appealability is unwarranted and, thus, a certificate of appealability is DENIED.
__________
JOHN F. WALTER
UNITED STATES DISTRICT JUDGE
PRESENTED BY: __________
MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE