KENDALL J. NEWMAN, Magistrate Judge.
Petitioner is a state prisoner, proceeding through counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties consented to proceed before the undersigned for all purposes.
Petitioner challenges his 2009 conviction on multiple counts of child molestation. Petitioner claims that: defense counsel was ineffective, in violation of the Sixth Amendment; the trial court improperly breached mediation confidentiality; and the prosecutor engaged in prosecutorial misconduct in violation of his constitutional rights. (ECF No. 1 at 3.) The court ordered petitioner to show cause why this action should not be dismissed based on petitioner's failure to first exhaust state court remedies; petitioner filed a response, respondent filed an opposition to the response, and petitioner filed a reply. (ECF Nos. 16, 18, 19.) In addition, petitioner filed a motion to amend, which is now fully briefed. (ECF Nos. 22, 23, 24.)
After careful review of the record and the parties' briefing, this court concludes that petitioner failed to exhaust his state court remedies; thus, the petition is dismissed without prejudice, and the motion to amend is denied.
A. On March 21, 2008, petitioner was charged with multiple counts of lewd acts upon his two daughters and a niece. (ECF No. 1 at 4.) Petitioner pled not guilty, and testified to his innocence at the jury trial. (
B. Petitioner, through counsel, appealed the conviction to the California Court of Appeal, Third Appellate District. According to the Court of Appeal opinion, petitioner raised 11 claims: (1) petitioner objected to the trial court closing the courtroom, claiming it violated his right to a public trial, and claimed defense counsel was ineffective based on his alleged failure to object to the closing of the courtroom; (2) the court violated his right to due process when it admitted evidence of his prior sex acts on the niece's aunt to show his propensity to commit sex offenses; (3) there was no clear and convincing evidence independently corroborating the facts supporting the conviction for molesting petitioner's niece; (4) the trial court erred by instructing the jury pursuant to CALCRIM No. 301, which permits a single witness's testimony to prove any fact, and pursuant to CALCRIM No. 1190, which permits a single witness's testimony to prove a sexual assault crime, and that the court erred in failing to advise the jury that these instructions did not apply to the niece's molestation charge, which required corroboration to toll the statute of limitations; (5) the trial court abused its discretion by refusing to sever the niece's charge from the daughters' charges; (6) the trial court erred by instructing the jury pursuant to CALCRIM No. 330, explaining how the jury should evaluate the testimony of a child who is age 10 or younger, because it violated petitioner's constitutional due process rights because there was no reciprocal instruction about petitioner's testimony; (7) CALCRIM No. 1110, which sets forth the elements of lewd acts on a child, is constitutionally deficient because it removes an essential element of the offense from the jury's consideration because the instruction states "[t]he touching need not be done in a lewd or sexual manner;" (8) the trial court erred in redacting portions of the juvenile court dependency records; (9) the prosecutor "engaged in repeated misconduct" by asking petitioner four improper questions: two regarding the veracity of a witness, another about a battered woman's shelter, and another about a court mediator; (10) the trial court abused its discretion in awarding $150,000 to each of the daughters as restitution; and (11) the trial court erred by ordering petitioner to pay $460 for the cost of preparing the probation report.
C. On March 2, 2011, the Court of Appeal affirmed the judgment in a reasoned opinion. (ECF Nos. 16-3, 16-4 & 16-5.)
D. On April 6, 2011, petitioner, through appointed appellate counsel, filed a petition for review in the California Supreme Court. (ECF Nos. 16-1 at 2-19; 16-2.) The petition for review raised one claim: "Where the trial court proposes to exclude the public during the testimony of two prosecution witnesses, and the [petitioner] does not expressly agree thereto, does this act as a waiver or forfeiture of the right to public trial?" (ECF No. 16-1 at 8.) For ease of reference, this issue is subsequently referred to as petitioner's "public trial issue."
E. On May 11, 2011, the California Supreme Court denied the petition for review without comment. (ECF No. 16-1 at 1.)
F. Petitioner filed no collateral challenges in state court. (ECF No. 1 at 4.)
G. Petitioner, through counsel, filed the instant petition on May 8, 2012. (ECF No. 1.) Petitioner claims that (a) defense counsel was ineffective, in violation of the Sixth Amendment; (b) the trial court improperly breached mediation confidentiality, and (c) the prosecutor engaged in prosecutorial misconduct in violation of his constitutional rights. (ECF No. 1 at 3.)
In the petition, counsel claims that "[a]ll state Administrative remedies were fully exhausted." (ECF No. 1 at 4.) In the answer, respondents do not waive exhaustion of state court remedies, but contend that it is petitioner's burden to demonstrate exhaustion. (ECF No. 13 at 1.)
The "Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 ("AEDPA") mandates that habeas petitioners exhaust their claims in state court before raising them in federal court."
After reviewing the petition for habeas corpus, the court finds that petitioner failed to exhaust state court remedies. In the response to the order to show cause, petitioner claims that the "complete opinion of the California Third District Court of Appeal was attached to the petition before the California Supreme Court," and therefore "at least all relevant arguments were part of the appeal to the California Supreme Court." (ECF No. 16 at 3.) Petitioner asks the court to find that all issues have been "effectively exhausted." (
The three claims contained in the instant petition have not been presented to the California Supreme Court. Further, there is no allegation that state court remedies are no longer available to petitioner. Accordingly, the petition should be dismissed without prejudice.
In response to the order to show cause, petitioner notes that the public trial issue was properly exhausted in the California Supreme Court, and "should therefore not be dismissed pursuant to this Order to Show Cause." (ECF No. 16 at 2.) Petitioner then cites
Two procedures are available to federal habeas petitioners who wish to proceed with exhausted and unexhausted claims for relief. The "
As the Ninth Circuit explained in
A petitioner who proceeds under
The decisions in both
As set forth above, it is apparent that petitioner has exhausted none of the federal habeas claims contained in the instant petition by presenting them first to the state's highest court.
In the reply to respondent's opposition to petitioner's response to the order to show cause, petitioner requests an extension of time to obtain "the full California State Court record," or, in the alternative, "leave to amend to include the issues raised in the first Response to the Show Cause Order to satisfy the Mixed matrix for staying purposes." (ECF No. 19 at 3.)
First, these requests were not properly filed as motions. Fed. R. Civ. P. 7(b)(1). "A request for a court order must be made by motion."
Second, the requests fail to "state with particularity the grounds for seeking the order." Fed. R. Civ. P. 7(b)(1)(B). Indeed, throughout petitioner's filings, petitioner argues the merits of the petition rather than addressing the procedural requirements that the court is required by statute to address before it can reach the merits.
Finally, including these requests in the reply deprived respondent of an opportunity to address such requests.
Accordingly, petitioner's requests are denied without prejudice.
On February 25, 2014, petitioner filed a motion to amend the petition to name the proper respondent inasmuch as petitioner was transferred to the Pleasant Valley Correctional Facility in Coalinga, California.
"[T]he default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official."
Because respondent does not object to petitioner naming the California Department of Corrections as a respondent, the Clerk of Court is directed to terminate R.J. Donovan Correctional Facility and Daniel Paramo as respondents in this action. In light of this ruling, it is not necessary for petitioner to amend the petition. Accordingly, the motion to amend is denied.
Finally, within the motion to amend, petitioner also asks the court to take judicial notice of information pertinent to Brandon Casio, the stepfather of petitioner's children. Respondent opposes the request to take judicial notice. Because the court is not reaching the merits of petitioner's claims, petitioner's request is denied as premature.
Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b).
Where, as here, the petition was dismissed on procedural grounds, a certificate of appealability "should issue if the prisoner can show: (1) `that jurists of reason would find it debatable whether the district court was correct in its procedural ruling'; and (2) `that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.'"
After careful review of the entire record, this court finds that petitioner has not satisfied the first requirement for issuance of a certificate of appealability in this case. Specifically, there is no showing that jurists of reason would find it debatable whether petitioner has exhausted state remedies. Accordingly, a certificate of appealability should not issue in this action.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's request for stay (ECF No. 16) is denied;
2. The two requests contained in petitioner's reply (ECF No. 19 at 3) are denied;
3. Petitioner's motion to amend and request for judicial notice (ECF No. 22) are denied without prejudice;
4. Petitioner's application for a writ of habeas corpus (ECF No. 1) is dismissed without prejudice;
5. The Clerk of the Court is directed to (a) terminate R.J. Donovan Correctional Facility and Daniel Paramo as respondents, and (b) terminate this action; and
6. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253.
Second, a motion to amend would likely be futile. The California Supreme Court denied the petition for review on May 11, 2011. Petitioner's conviction became final ninety days later, on August 9, 2011, when the time for seeking certiorari with the United States Supreme Court expired.
As noted above, petitioner filed no post-conviction challenges in state court. Thus, petitioner is not entitled to statutory tolling pursuant to 28 U.S.C. § 2244(d)(2).
Although petitioner filed his federal petition on May 8, 2012, within the limitations period, the federal petition contained only unexhausted claims. A federal habeas petition is not an "application for State post-conviction or other collateral review" within the meaning of 28 U.S.C. § 2244(d)(2).
