Opinion
Sammy Briceno Solis, Petitioner, Pro se, Eloy, AZ.
For Jeffrey Beard, Secretary, CDCR, Respondent: Stephanie Chu Santoro, LEAD ATTORNEY, Office of the Attorney General, Los Angeles, CA.
ORDER GRANTING MOTION TO DISMISS AND DISMISSING ACTION WITHOUT PREJUDICE
HONORABLE DAVID T. BRISTOW, UNITED STATES MAGISTRATE JUDGE.
Currently pending before the Court is respondent's Motion to Dismiss Petition for Writ of Habeas Corpus (" Motion"). For the reasons set forth herein, the Motion is granted and the Petition is dismissed without prejudice.
PROCEEDINGS
On March 10, 2015, petitioner filed a Petition for Writ of Habeas Corpus (" Pet.") herein, along with a supporting Memorandum of Points and Authorities (" Pet. Mem."). In accordance with the Court's Order Requiring Response to Petition, and after one extension of time, respondent filed a Motion to Dismiss Petition for Writ of Habeas Corpus (" Motion") on May 22, 2015, on the grounds that (1) the Petition is unverified; and (2) petitioner has failed to exhaust state remedies. Petitioner filed his Opposition (" Opp.") to the Motion on June 1, 2015. Petitioner filed a Supplemental Opposition (" Supp. Opp.") to the Motion on June 8, 2015.
PROCEDURAL HISTORY
On or about June 12, 2012, a Los Angeles County Superior Court jury found petitioner guilty of attempted murder. The jury also found true the allegation that petitioner personally used a deadly weapon, a knife, and that he personally inflicted great bodily injury upon the victim. (Pet. at 2; Respondent's Notice of Lodging [" Lodgment" ] No. 1 at 2.) On or about July 19, 2013, the trial court sentenced petitioner to 13 years in state prison. (Id.)
On July 25, 2013, petitioner appealed his conviction and sentence to the California Court of Appeal. (California appellate court's website.) In an unpublished decision issued on October 17, 2014, the court of appeal modified the judgment to reflect that petitioner was convicted of attempted murder and to delete the reference to " willful, deliberate, premeditated, " murder but otherwise affirmed the judgment. (California appellate court's website; Lodgment No. 1.) Thereafter, on or about January 18, 2015, petitioner's appellate counsel provided petitioner with the court of appeal's decision, apologizing for the delay and indicating that the materials had been previously rejected by petitioner's institution. (Opp., Exhibit 1.)
http://appellatecases.courtinfo.ca.gov
On February 17, 2015, petitioner submitted a Petition for Review to the California Supreme Court. (Opp., Exhibit 2.) On February 18, 2015, the Court Administrator and Clerk of the California Supreme Court sent petitioner a letter explaining that his Petition for Review was being returned as unfiled since the period to file a Petition for Review expired on December 16, 2014 and, therefore, the Supreme Court had lost jurisdiction to act on any petition for review. (Id.)
Thereafter, petitioner filed the instant Petition.
PETITIONER'S CLAIMS HEREIN
1. The trial court erred in refusing to instruct on assault with a deadly weapon as a lesser included offense of attempted murder. (Pet. at 5.)
2. The abstract of judgment erroneously reflects that the jury convicted petitioner of premeditated attempted murder. (Pet. at 5.)
DISCUSSION
I. Petitioner has failed to exhaust his available state remedies .
In his Motion, respondent also argues that petitioner has failed verify the Petition. In his Opposition petitioner alleges the same was not done for a tactical advantage, and further notes that he signed pages 9-11 of the memorandum of points and authorities attached to the Petition. As the Court is dismissing the Petition on the basis that it is unexhausted, the Court need not decide whether the Petition is properly verified. However, in th event petitioner files any subsequent petitions, such must be properly verified by petitioner under penalty of perjury, as required by Rule 2(c)(5) of the Rules Governing Section 2254 Cases in the United States District Courts. While the Petition could be amended to correct the verification issue, the same is not true with respect to petitioner's failure to exhaust his available state remedies, as discussed herein.
As a matter of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has exhausted the available state judicial remedies on every ground for relief presented in the petition. Rose v. Lundy, 455 U.S. 509, 518-22, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The habeas statute now explicitly provides that a habeas petition brought by a person in state custody " 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).
Exhaustion requires that the prisoner's contentions be fairly presented to the state courts, and be disposed of on the merits by the highest court of the state. James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979); see also Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). A claim has not been fairly presented unless the prisoner has described in the state court proceedings both the operative facts and the federal legal theory on which his claim is based. Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Greenway v. Schriro, 653 F.3d 790, 801 (9th Cir. 2011); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). Petitioner has the burden of demonstrating that he has exhausted his available state remedies. See, e.g., Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982) (per curiam).
Here, even applying the liberal standard accorded to pro se petitions, the Court finds that petitioner has not met his burden of demonstrating that he has exhausted the claims raised in the Petition herein, as the claims have not been " fairly presented" to the California Supreme Court.
The Ninth Circuit has held that, for purposes of exhaustion, pro se petitions are held to a more lenient standard than counseled petitions. Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003); Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003) (en banc).
Petitioner contends that he has attempted to satisfy all state requirements for exhaustion, but that he was unable to file a timely Petition for Review as a result of his attorney's failure to notify him of the decision by the court of appeal in a timely manner. (Opp. at 1.) However, the inability of petitioner to raise his claims with the Supreme Court in a proper fashion does not eliminate his obligation to exhaust his claims in state court.
Because the California Supreme Court rejected petitioner's Petition for Review on the basis that it was untimely, the Petition remains unexhausted. See, e.g., Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (per curiam) (" Submitting a new claim to the state's highest court in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation.").
A review of the record reveals that petitioner only attempted to seek relief from the California Supreme Court through the filing of an untimely Petition for Review. There is no evidence that petitioner's Petition for Review was ignored; on the contrary, petitioner was expressly notified on February 18, 2015, by Robert R. Toy, the Court Administrator and Clerk of the California Supreme Court, that his Petition for Review had been untimely filed. (Opp., Exhibit 2.) In his letter, Toy explained that the deadline for filing petitioner's Petition for Review was December 16, 2014, and informed petitioner that the Supreme Court lost jurisdiction and could not consider his request for legal relief. (Id.)
As such, there is no dispute that the grounds for relief raised in the Petition have not been fairly presented to the California Supreme Court for purposes of exhausting petitioner's available state remedies. Petitioner is required to present both the factual and legal basis for his claims to the highest state court, Greenway, 653 F.3d at 801, and he has failed to demonstrate that he has done so.
If it were clear here that petitioner's unexhausted claims were procedurally barred under state law, then the exhaustion requirement would be satisfied. See Castille v. Peoples, 489 U.S. 346, 351-52, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); Johnson, 88 F.3d at 831. However, it is not " clear" here that the California Supreme Court would hold that petitioner's claims are procedurally barred under state law if petitioner were to raise them in a habeas petition to the California Supreme Court. See, e.g., In re Harris, 5 Cal.4th 813, 825, 21 Cal.Rptr.2d 373, 855 P.2d 391 (1993) (granting habeas relief where petitioner claiming sentencing error, even though the alleged sentencing error could have been raised on direct appeal); People v. Sorensen, 111 Cal.App.2d 404, 405, 244 P.2d 734 (1952) (noting that claims that fundamental constitutional rights have been violated may be raised by state habeas petition). The Court therefore concludes that this is not an appropriate case for invocation of the " exception" to the requirement that a petitioner's federal claims must first be fairly presented to and disposed of on the merits by the state's highest court.
In that event, although the exhaustion impediment to consideration of petitioner's claims on their merits would be removed, federal habeas review of the claims would still be barred unless petitioner could demonstrate " cause" for the default and " actual prejudice" as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims would result in a " fundamental miscarriage of justice." See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
The Court further concludes that this is not an appropriate case for invocation of the stay-and-abeyance procedure authorized by Rhines v. Weber, 544 U.S. 269, 277, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). The Petition herein does not constitute a " mixed petition" containing both exhausted and unexhausted claims; rather, it constitutes a petition containing solely unexhausted claims. The Ninth Circuit has held in a post-Rhines decision that the stay-and-abeyance procedure does not apply to petitions containing solely unexhausted claims. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). A petition containing solely unexhausted claims must be dismissed. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001).
Likewise, a stay would not be appropriate under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) (as amended), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), whereby the Court has discretion to stay and hold in abeyance a fully exhausted petition in order to provide the petitioner with the opportunity to proceed to state court to exhaust his unexhausted claims. Under this procedure, once the claims have been exhausted in state court, the petitioner may return to federal court and amend his federal petition to include the newly-exhausted claims. See id. at 1070-71; see also King v. Ryan, 564 F.3d 1133, 1140-43 (9th Cir. 2009); Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005); James v. Pliler, 269 F.3d 1124, 1126-27 (9th Cir. 2001); Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000). The procedure in Kelly requires the petitioner to dismiss any unexhausted claims from the pending petition while he exhausts such claims in state court. See King, 564 F.3d at 1140. Once they are exhausted, petitioner then seeks to amend the petition with the newly exhausted claims. The new claims will only be eligible for amendment if they are timely or if the new claims share a common core of operative facts with the claims in the pending petition. Id. at 1140-41. Here, however, since the Petition contains only unexhausted claims, this procedure would not be applicable as there are no exhausted claims to hold in abeyance.
Petitioner may attempt to satisfy the exhaustion requirement by filing a habeas petition with the California Supreme Court, and thereafter file another federal habeas petition. The Court recognizes that plaintiff argues that he was unable to file a timely Petition for Review due to his attorney's failure to communicate while the Court appreciates petitioner's position, it lacks the authority to excuse the exhaustion requirement of 28 U.S.C. § 2254(b)(1) on these facts. Therefore, in order to properly exhaust the claims alleged herein, petitioner must raise them in a habeas petition to the California Supreme Court.
CONCLUSION
IT THEREFORE IS ORDERED that Judgment be entered granting respondent's Motion to Dismiss and dismissing the Petition without prejudice.
JUDGMENT
Pursuant to the Order Granting Motion to Dismiss and Dismissing Action Without Prejudice, IT IS ADJUDGED that the action is dismissed without prejudice.