Opinion
No. CV 16-492 SJO (FFM)
02-12-2016
OSCAR VILLANUEVA, Petitioner, v. C. PFEIFFER, WARDEN, Respondent.
ORDER RE SUMMARY DISMISSAL OF ACTION WITHOUT PREJUDICE
On January 22, 2016, Petitioner Oscar Villanueva ("Petitioner") filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition"), pursuant to 28 U.S.C. § 2254. The Petition alleges various constitutional violations in connection with Petitioner's prison disciplinary hearing that occurred on April 28, 2013. (Petition at 4).
All citations to filings in this case refer to the pagination provided by the Court's electronic docket.
"Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); accord Rose v. Lundy, 455 U.S. 509, 518-22, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). The habeas statute 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). Moreover, if the exhaustion requirement is to be waived, it must be waived expressly by the State, through counsel. See 28 U.S.C. § 2254(b)(3).
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. Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979). 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. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-78, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). A federal court may raise the failure to exhaust issues sua sponte and may summarily dismiss on that ground. See Stone v. San Francisco, 968 F.2d 850, 856 (9th Cir. 1992)(citations omitted); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (per curiam); see also Granberry v. Greer, 481 U.S. 129, 134-35, 107 S. Ct. 1671, 95 L. Ed. 2d 119 (1987).
Petitioner has the burden of demonstrating that he has exhausted available state remedies. See, e.g., Brown v. Cuyler, 669 F.2d 155, 158 (3rd Cir. 1982). Here, it plainly appears from the face of the Petition that Petitioner cannot meet this burden with respect to his claims. The Petition does not include any documents suggesting that Petitioner has exhausted the claims presently raised before this Court. Additionally, a review of California Supreme Court records reveals that Petitioner has never filed a habeas petition with the California Supreme Court. See http://appellatecases.courtinfo.ca.gov (last visited February 4, 2016).
The Court notes that Petitioner has attached to the Petition two state court decisions, one from the Kern County Superior Court and the other from the Fifth Appellate District of the California Court of Appeal. (Petition at 13-15). However, these state opinions do not discuss the claims raised in the instant Petition. In any event, the claims discussed in the state court decisions are also unexhausted. --------
Because Petitioner has not raised his present claims in the California Supreme Court, the Petition is unexhausted.
If it were clear that Petitioner is raising federal claims and that the California Supreme Court would hold that Petitioner's unexhausted federal claims are procedurally barred under state law, then the exhaustion requirement would be satisfied. In that event, although the exhaustion impediment to consideration of Petitioner's claims on the merits would be removed, federal habeas review of the claim would remain 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). Here, it is neither "clear" that Petitioner is raising a federal claim nor that the California Supreme Court would hold that Petitioner's federal claim is procedurally barred under state law. See, e.g., People v. Sorensen, 111 Cal. App. 2d 404, 405 (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 either exception to the exhaustion requirement regarding the existence of an effective state corrective process.
Therefore, the Petition is subject to dismissal. / / / / / /
IT IS THEREFORE ORDERED that this action be summarily dismissed without prejudice, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
LET JUDGEMENT BE ENTERED ACCORDINGLY. Dated: February 12, 2016.
/s/_________
S. JAMES OTERO
United States District Judge Presented by:
/S/ FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magistrate Judge