Anderson v. San Bernardino County Sheriff Department

Opinion

Case 5:22-cv-01406-JAK-KES Document 9 Filed 09/08/22 Page 1 of 4 Page ID #:30

1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BROQUE ANTHONY Case No. 5:22-cv-01406-JAK-KES ANDERSON, 12 Petitioner, ORDER SUMMARILY DISMISSING 13 v. UNEXHAUSTED § 2254 PETITION 14 WITHOUT PREJUDICE SAN BERNARDINO COUNTY 15 SHERIFF DEPARTMENT, 16 Respondent. 17 18 19 A. PROCEDURAL HISTORY.

20 On July 29, 2022, Petitioner Broque Anthony Anderson (“Petitioner”) 21 constructively filed a Petition for Writ of Habeas Corpus by a Person in State 22 Custody pursuant to 28 U.S.C. § 2254. (Dkt. 1 [the “Petition”].) Petitioner 23 challenges his March 2022 convictions in San Bernardino County Superior Court 24 case nos. FWV21003848 and FWV21003849 for violating California Penal Code 25 section 459 (burglary). (Id. at 2.) 26 The Petition states that Petitioner appealed his convictions in case no. 27 E079027, and that appeal remains “pending.” (Id. at 2-3.) It also says that 28 1 Case 5:22-cv-01406-JAK-KES Document 9 Filed 09/08/22 Page 2 of 4 Page ID #:31

1 Petitioner is currently represented by appointed counsel, Alex Kreit. (Id. at 8.) 2 Consistent with this information, the California Court of Appeal’s website shows 3 that Mr. Kreit represents Petitioner in his direct appeal, case no. E079027. The 4 appeal was initiated in May 2022, and no briefing has been filed yet. See 5 https://appellatecases.courtinfo.ca.gov. 6 Because his direct appeal is still pending, the Court issued an Order to Show 7 Cause (“OSC”) why the Petition should not be summarily dismissed without 8 prejudice as unexhausted. (Dkt. 5.) 9 Petitioner responded to the OSC by arguing that he exhausted his claims by 10 presenting them to the California Supreme Court in a habeas petition that was 11 denied on July 20, 2022. (Dkt. 8.) The California Supreme Court did deny a 12 habeas petition filed by Petition on that date, reasoning as follows: 13 The petition for writ of habeas corpus is denied. Individual claims are 14 denied, as applicable. (See People v. Duvall (1995) 9 Cal.4th 464, 15 474 [a petition for writ of habeas corpus must include copies of 16 reasonably available documentary evidence]; In re Lessard (1965) 62 17 Cal.2d 497, 503 [courts will not entertain habeas corpus claims that 18 raise Fourth Amendment violations]; In re Swain (1949) 34 Cal.2d 19 300, 304 [a petition for writ of habeas corpus must allege sufficient 20 facts with particularity].) 21 See https://appellatecases.courtinfo.ca.gov, case no. S275145. 22 Petitioner filed a voluntary dismissal of any Fourth Amendment claims raised 23 in the Petition. (Dkt. 7.) Thus, the only denials by the California Supreme Court 24 relevant to exhaustion are the Duvall-Swain denials. 25 B. LEGAL STANDARDS. 26 A state prisoner must exhaust his or her state court remedies before a federal 27 court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); 28 O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To satisfy the exhaustion 2 Case 5:22-cv-01406-JAK-KES Document 9 Filed 09/08/22 Page 3 of 4 Page ID #:32

1 requirement, a habeas petitioner must fairly present his federal claims in the state 2 courts to give the State the opportunity to pass upon and correct alleged violations 3 of the prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995) (per 4 curiam). A habeas petitioner must give the state courts “one full opportunity” to 5 decide a federal claim by carrying out “one complete round” of the state’s appellate 6 process in order to properly exhaust a claim. O’Sullivan, 526 U.S.at 845. 7 Citations to In re Swain and People v. Duvall reference the California rule 8 that a California habeas petitioner must state fully and with particularity the facts 9 upon which relief is sought to meet the initial burden of pleading adequate grounds 10 for relief. See Gaston v. Palmer, 417 F.3d 1030, 1038-39 (9th Cir. 2005), modified, 11 447 F.3d 1165 (9th Cir. 2006), cert. denied, 549 U.S. 1134 (2007) (describing 12 pleading requirements of Duvall and Swain). The failure to meet the pleading 13 requirements of Duvall and Swain can be cured in a renewed or amended petition. 14 See Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). Thus, where the 15 California Supreme Court denies habeas claims with citations to Duvall or Swain, 16 the denial can signify a failure to exhaust available state remedies. Id. 17 When undertaking an exhaustion analysis following such denials, federal 18 courts must consider whether “fair presentation” of the claims to the state courts has 19 been accomplished. Id. at 1320. “The relevant question is whether the prisoner 20 gave the state court a fair opportunity in the first instance to address the federal 21 claim.” Humphry v. Paramo, 2:18-cv-00298-JAK-MAA, 2019 U.S. Dist. LEXIS 22 16710, at *9 (C.D. Cal. Feb. 1, 2019) (Order Accepting Findings and 23 Recommendations of United States Magistrate Judge). 24 C. EXHAUSTION ANALYSIS. 25 Here, the California Supreme Court’s denials based on In re Swain and 26 People v. Duvall did not accomplish exhaustion. The California courts have not 27 had “one full opportunity” to decide Petitioner’s federal claims, because he has not 28 yet completed the state’s appellate process. 3 Case 5:22-cv-01406-JAK-KES Document Filed 09/08/22 Page 4of4 Page ID #:33

1 The Court summarily dismisses the unexhausted Petition, without prejudice 2 | to Petitioner filing a new § 2254 Petition after he completes his direct appeal and 3 | exhausts his claims. Petitioner should consult with Mr. Kreit to understand when 4 | his direct appeal is final and the subsequent deadline for filing a timely § 2254 5 || Petition. 7 | DATED: _September 8, 2022 8 C) WW. NX ° John A.Kronstadt = s—is 10 UNITED STATES DISTRICT JUDGE 11 | Presented by: "| Buns E Scat KAREN E. SCOTT 13 | United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28