Opinion
Case No. 2:19-cv-10324-CAS-JC
08-21-2020
CURTIS LAVERN HOFFMAN, Petitioner, v. PEOPLE OF THE STATE OF CALIFORNIA, Respondent.
ORDER SUMMARILY DISMISSING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS
I. SUMMARY
On August 18, 2020, petitioner Curtis Lavern Hoffman, a state prisoner who is proceeding pro se, formally filed the operative First Amended Petition for Writ of Habeas Corpus by a Person in State Custody ("First Amended Petition" or "FAP"). Petitioner challenges his August 2019 convictions and October 2019 sentences in Ventura County Superior Court Case Nos. 18F-10506 and 19F-03667 on multiple grounds. (FAP at 3, 7-8). It plainly appears from the face of the First Amended Petition that it is wholly unexhausted as it reflects that none of petitioner's claims have been raised with and resolved by the California Supreme Court. (FAP at 7-8). Accordingly, petitioner is not entitled to federal habeas relief on his claims at this time. As explained below, the Court dismisses this action without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, which requires a judge promptly to examine a federal habeas petition, and to dismiss it if "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court. . . ."
As the First Amended Petition bears non-consecutive page numbering, the Court uses the pagination reflected on the electronic version which appears on the docket (Docket No. 9).
In an Order to Show Cause ("OSC") issued by the Magistrate Judge relative to petitioner's initial Petition for Writ of Habeas Corpus ("Original Petition"), the Magistrate Judge explained the exhaustion requirement to petitioner, noted that he had not demonstrated that he had exhausted any of the claims asserted in the Original Petition and that the Original Petition was deficient in multiple respects, and afforded him the opportunity to file a first amended petition curing the deficiencies identified in the OSC. Petitioner thereafter filed the operative First Amended Petition which, as discussed herein, affirmatively reflects that he has not exhausted any of the claims contained therein.
II. DISCUSSION
Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a petitioner has exhausted the remedies available in state court. Exhaustion requires that the petitioner's contentions were fairly presented to the state courts, Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011), cert. denied, 568 U.S. 959 (2012), and disposed of on the merits by the highest court of the state, Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002). As a matter of comity, a federal court will not entertain a habeas petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in it. See Rose v. Lundy, 455 U.S. 509, 518 (1982). A federal court may raise the failure-to-exhaust issue sua sponte and summarily dismiss on that ground. See Granberry v. Greer, /// 481 U.S. 129, 134-35 (1987); Stone v. City & County of San Francisco, 968 F.2d 850, 856 (9th Cir. 1991), cert. denied, 506 U.S. 1081 (1993).
A habeas petition "shall not be granted unless it appears that - [¶] (A) the applicant has exhausted the remedies available in the courts of the State; or [¶] (B)(i) there is an absence of available state corrective process; or [¶] (ii) circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1).
Petitioner has the burden of demonstrating he has exhausted available state remedies. See, e.g., Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972) (per curiam); Rollins v. Superior Court, 706 F. Supp. 2d 1008, 1011 (C.D. Cal. 2010).
In the present proceeding, the First Amended Petition affirmatively reflects that petitioner has not properly presented and had his claims resolved by the California Supreme Court. (FAP at 7-8). Accordingly, it plainly appears from the face of the First Amended Petition that petitioner cannot meet his burden to demonstrate that he has exhausted his claims because they have not been disposed of by the California Supreme Court.
Petitioner indicates that no grounds were presented to the California Supreme Court because his "preliminary notice" to such court was "returned unclaimed, but already opened[.]" (FAP at 5, 9). A search of the California Supreme Court's dockets - available via https://appellatecases.courtinfo.ca.gov - yields no indication that petitioner has filed anything with such court. Thus, even assuming the referenced "preliminary notice" could be construed as an effort by petitioner to present his current claims to the California Supreme Court, this would not satisfy the exhaustion requirement because he apparently did not "properly file" such notice. See, e.g., Brumfield v. Koenig, 2018 WL 6835974, *6 (C.D. Cal. Nov. 29, 2018) (rejected petition for review submitted to state supreme court did not exhaust federal habeas petitioner's claims because only a "properly filed" document can fairly present claims to a state court) (citation omitted), report and recommendation adopted, 2018 WL 6831126 (C.D. Cal. Dec. 27, 2018), certificate of appealability denied, 2019 WL 7422010 (9th Cir. Oct. 25, 2019)..
Although it is clear that the California Supreme Court has not resolved petitioner's claims, the exhaustion requirement may nonetheless be satisfied if petitioner's claims are clearly procedurally barred under state law. See Castille v. Peoples, 489 U.S. 346, 351-52 (1989); Johnson v. Zenon, 88 F.3d 828, 831 (9th Cir. 1996). In this case, it is not at all "clear" that the California Supreme Court would deem petitioner's claims procedurally barred under state law. See In re Harris, 5 Cal. 4th 813, 825 (1993) ("[H]abeas corpus has become a proper remedy in this state to collaterally attack a judgment of conviction which has been obtained in violation of fundamental constitutional rights.") (citations omitted); People v. Sorenson, 111 Cal. App. 2d 404, 405 (1952) (claims that fundamental constitutional rights have been violated may be raised by state habeas petition). However, this Court expresses no opinion regarding whether consideration of petitioner's claims might be foreclosed by the principles discussed in In Re Clark, 5 Cal. 4th 750, 763-87 (1993). The California Supreme Court should evaluate the matter in the first instance. Even if an applicable state procedural bar exists, the California Supreme Court nevertheless might choose to reach the merits of petitioner's claims. See, e.g., Park v. California, 202 F.3d 1146, 1151-52 (9th Cir.), cert. denied, 531 U.S. 918 (2000).
Once, as in this case, a Court determines that a habeas petition contains only unexhausted claims, it may dismiss the petition for failure to exhaust. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("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.") (citation omitted); but see Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (court has discretion to stay wholly unexhausted petitions).
Accordingly, because the operative Petition in this case is wholly unexhausted, dismissal thereof on this ground is appropriate. /// /// /// /// /// /// /// ///
III. ORDER
IT IS THEREFORE ORDERED that the operative First Amended Petition and this action are dismissed without prejudice and that Judgment be entered accordingly.
If, as petitioner represents, he was sentenced on October 9, 2019, and did not appeal to the California Court of Appeal (FAP at 3), his convictions would have become final on or about Monday, December 9, 2019 - effectively sixty days after sentencing, when the time to appeal the judgment expired (see Cal. R. Ct. 8.308(a) (notice of appeal must be filed within 60 days of rendition of a judgment); Cal. Penal Code § 1237(a) (a "sentence" constitutes a "final judgment" for purposes of a defendant's right to appeal), and his one year statute of limitations to file a federal habeas petition challenging such convictions would expire no earlier than December 9, 2020 (see 28 U.S.C. § 2244(d)). Petitioner is cautioned that the pendency of the instant action would not operate to toll such statute of limitations. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001). --------
IT IS SO ORDERED. DATED: August 21, 2020
/s/_________
HONORABLE CHRISTINA A. SNYDER
UNITED STATES DISTRICT JUDGE