(HC) Lawrie v. Diaz, 1:13-cv-00381

1:13-cv-00381 | E.D. Cal. | May 21, 2013

Case 1:13-cv-00381-GSA Document 7 Filed 05/21/13 Page 1 of 4

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ) MATTHEW ALAN LAWRIE, 1:13-cv-00381 GSA HC ) Petitioner, ORDER DISMISSING PETITION FOR WRIT OF ) HABEAS CORPUS )

v. ) ) ORDER DIRECTING CLERK OF COURT TO

RALPH DIAZ, Warden, ) ENTER JUDGMENT AND CLOSE CASE )

Respondent. ) ORDER DECLINING ISSUANCE OF ) CERTIFICATE OF APPEALABILITY Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636(c).

Petitioner filed the instant federal petition for writ of habeas corpus in this Court on March 15, 2013. Petitioner challenges a prison disciplinary hearing held on August 6, 2012, wherein he was found guilty of the specific act of conduct which might lead to violence.

DISCUSSION A. Preliminary Review of Petition Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254

Case 1:13-cv-00381-GSA Document 7 Filed 05/21/13 Page 2 of 4 Cases; Hendricks v. Vasquez, 908 F.2d 490" date_filed="1990-07-12" court="9th Cir." case_name="Edgar M. Hendricks v. Daniel Vasquez, Warden Attorney General of the State of California">908 F.2d 490 (9th Cir.1990). Otherwise, the Court will order 1 Respondent to respond to the petition. Rule 5 of the Rules Governing § 2254 Cases. B. Exhaustion of State Remedies

A petitioner who is in state custody proceeding with a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158" date_filed="1988-08-16" court="9th Cir." case_name="Joseph Buffalo v. Franklin Sunn, Director D.S.S.H.">854 F.2d 1158, 1163 (9th Cir. 1988).

A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. Henry, 513 U.S. 364" date_filed="1995-01-23" court="SCOTUS" case_name="Duncan v. Henry">513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270" date_filed="1971-12-20" court="SCOTUS" case_name="Picard v. Connor">404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan, 513 U.S. 364" date_filed="1995-01-23" court="SCOTUS" case_name="Duncan v. Henry">513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715" date_filed="1992-05-04" court="SCOTUS" case_name="Keeney v. Tamayo-Reyes">112 S.Ct. 1715, 1719 (1992) (factual basis).

Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. 364" date_filed="1995-01-23" court="SCOTUS" case_name="Duncan v. Henry">513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666" date_filed="2000-11-13" court="9th Cir." case_name="Phillip Jackson Lyons v. Jackie Crawford">232 F.3d 666, 669 (9th Cir.2000), amended , 247 F.3d 904" date_filed="2000-11-13" court="9th Cir." case_name="Lyons v. Crawford">247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098" date_filed="1999-10-29" court="9th Cir." case_name="Todd Hiivala v. Tana Wood">195 F.3d 1098, 1106 (9th Cir.1999); Keating v. Hood, 133 F.3d 1240" date_filed="1998-01-15" court="9th Cir." case_name="Charles H. Keating, Jr. v. Robert Hood Attorney General of the State of California">133 F.3d 1240, 1241 (9th Cir.1998). In Duncan, the United States Supreme Court reiterated the rule as follows:

In Picard v. Connor, 404 U.S. 270" date_filed="1971-12-20" court="SCOTUS" case_name="Picard v. Connor">404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. Duncan, 513 U.S. 364" date_filed="1995-01-23" court="SCOTUS" case_name="Duncan v. Henry">513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating: Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to Case 1:13-cv-00381-GSA Document 7 Filed 05/21/13 Page 3 of 4 that court that those claims were based on federal law. See Shumway v. Payne, 223 F.3d 982" date_filed="2000-08-24" court="9th Cir." case_name="Alexis Shumway v. Alice Payne, Superintendent of Washington State Penitentiary at Purdy">223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is “self-evident," Gatlin v. Madding, 189 F.3d 882" date_filed="1999-08-25" court="9th Cir." case_name="Peter M. Gatlin v. M.K. Madding, Warden Attorney General of the State of California People of the State of California">189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4" date_filed="1982-11-01" court="SCOTUS" case_name="Anderson v. Harless">459 U.S. 4, 7 . . . (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828" date_filed="1996-07-11" court="9th Cir." case_name="Dwayne Randall JOHNSON, Petitioner-Appellant, v. Carl ZENON, Respondent-Appellee">88 F.3d 828, 830-31 (9th Cir. 1996); . . . .

1 In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is. Lyons v. Crawford, 232 F.3d 666" date_filed="2000-11-13" court="9th Cir." case_name="Phillip Jackson Lyons v. Jackie Crawford">232 F.3d 666, 668-669 (9th Cir. 2000) (italics added). A review of the instant petition for writ of habeas corpus reveals that Petitioner has administratively appealed the decision but he has not sought review for his claims in the state courts. Since Petitioner has not presented all of his claims to the highest state court, the Court cannot proceed to the merits of those claims. 28 U.S.C. § 2254(b)(1). C. Certificate of Appealability

A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322" date_filed="2003-02-25" court="SCOTUS" case_name="Miller-El v. Cockrell">537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from–

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (1) only if the Case 1:13-cv-00381-GSA Document 7 Filed 05/21/13 Page 4 of 4 applicant has made a substantial showing of the denial of a constitutional right. 1 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). If a court denies a petitioner’s petition, the court may only issue a certificate of appealability “if jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. 322" date_filed="2003-02-25" court="SCOTUS" case_name="Miller-El v. Cockrell">537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473" date_filed="2000-04-26" court="SCOTUS" case_name="Slack v. McDaniel">529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he must demonstrate “something more than the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. 322" date_filed="2003-02-25" court="SCOTUS" case_name="Miller-El v. Cockrell">537 U.S. at 338.

In the present case, the Court finds that reasonable jurists would not find the Court’s determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Petitioner has not made the required substantial showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a certificate of appealability.

ORDER

Accordingly, IT IS HEREBY ORDERED: 1) The petition for writ of habeas corpus is DISMISSED without prejudice; 2) The Clerk of Court is DIRECTED to enter judgment and terminate the case; and 3) The Court DECLINES to issue a certificate of appealability.

IT IS SO ORDERED.

Dated: May 21, 2013 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END: 6i0kij8d