(HC)Gill v. People of the State of California
2:13-cv-02598
E.D. Cal.Feb 5, 2014Background
- Petitioner Kendal S. Gill, a state prisoner, challenges a four-year sentence imposed by the Shasta County Superior Court for multiple convictions (assault, child abuse, criminal threats, attempted arson, false imprisonment, resisting arrest).
- Petitioner filed a federal habeas petition under 28 U.S.C. § 2254 and sought leave to proceed in forma pauperis; the court granted in forma pauperis status.
- The Court reviewed the petition under Rule 4 and determined petitioner appears not to have exhausted state remedies for the claims presented.
- Petitioner indicated a direct appeal was denied by the California Court of Appeal (Third Appellate District) on December 3, 2013, and a Shasta County Superior Court habeas petition was denied March 13, 2013.
- The habeas form was left blank as to whether petitioner sought review in the California Supreme Court; the California Supreme Court docket shows no petition for review by petitioner.
- The Court ordered petitioner, within 30 days, to show cause for the apparent failure to exhaust state remedies or obtain respondent’s express waiver of exhaustion, warning failure to comply would lead to a recommendation of dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner exhausted state remedies before § 2254 filing | Gill contends he pursued state remedies (appeal; county habeas) but did not show review by CA Supreme Ct | Respondent implicitly argues exhaustion not shown; no consent to proceed on unexhausted claims | Court found petitioner has not shown exhaustion to the California Supreme Court and ordered show cause or waiver |
| Whether federal court may hear unexhausted claims absent consent | Gill did not obtain respondent’s consent | Respondent has not waived exhaustion requirement | Court reiterated that without consent or showing no available state remedy, unexhausted claims require dismissal |
| Whether state remedies are unavailable or ineffective | Gill did not allege state remedies are unavailable or ineffective | Respondent asserts state process is available | Court noted petitioner made no such allegation and must either show cause or obtain waiver |
| Whether in forma pauperis should be granted | Gill asserted inability to pay filing costs and submitted affidavit | No opposition noted | Court granted in forma pauperis based on affidavit |
Key Cases Cited
- Picard v. Connor, 404 U.S. 270 (1971) (exhaustion requires presenting the substance of federal claim to state courts)
- Duncan v. Henry, 513 U.S. 364 (1995) (state courts must be alerted that prisoner is asserting federal constitutional claims)
- Carey v. Saffold, 536 U.S. 214 (2002) (describes California’s habeas procedure and exhaustion in California)
- Gatlin v. Madding, 189 F.3d 882 (9th Cir. 1999) (to exhaust in California, present claims to the California Supreme Court in petition for review)
- MGIC Indem. Co. v. Weisman, 803 F.2d 500 (9th Cir. 1986) (federal courts may take judicial notice of state court records)
- United States v. Wilson, 631 F.2d 118 (9th Cir. 1980) (judicial notice of court records is permissible)