1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10
11 DANIEL WAYNE GROGAN, Case No. 2:20-cv-03483-JAK (GJS)
12 Petitioner
13 v. ORDER: SUMMARILY DISMISSING PETITION 14 CURVA, WITHOUT PREJUDICE; AND DENYING CERTIFICATE OF 15 Respondent. APPEALABILITY
17 This 28 U.S.C. § 2254 habeas action commenced on April 15, 2020, when the 18 habeas petition submitted by Petitioner was formally filed [Dkt. 1, the “Petition”]. 19 The Petition challenges a July 2018 Los Angeles County Superior Court conviction 20 suffered by Petitioner following his nolo contendere plea to an attempted robbery 21 with use of a firearm charge. [Petition at 1.] The Petition alleges four claims based 22 on allegations that: the plea agreement underlying Petitioner’s conviction has been 23 breached; there have been Brady violations; Petitioner’s counsel provided 24 ineffective assistance by failing to adequately investigate whether Petitioner’s prior 25 State of Washington conviction constituted a “strike”; and the sentencing court 26 lacked jurisdiction to consider Petitioner’s post-conviction habeas petition. 27 Rule 4 of the Rules Governing Section 2254 Cases in the United States District 28 Courts provides that a petition for writ of habeas corpus “must” be summarily 1 dismissed “[i]f it plainly appears from the petition and any attached exhibits that the 2 petitioner is not entitled to relief in the district court.” Here, it plainly appears that 3 the Petition is fully unexhausted1 and that Petitioner has failed to avail himself of his 4 available options. 5 On April 16, 2020, United States Magistrate Judge Gail J. Standish issued her 6 Order To Show Cause Re: Unexhausted Petition And Directing Response [Dkt. 4, 7 “OSC”]. The OSC noted Petitioner’s allegations that he raised his present habeas 8 claims through proceedings in both the trial court and the California Court of 9 Appeal, but that he had not sought relief in the California Supreme Court and did 10 not have any state proceedings pending at present. The OSC explained the 11 exhaustion requirement for Section 2254 petitions and then advised: 12 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has taken judicial notice of the 13 dockets of the Los Angeles County Superior Court, the California Court of Appeal, and the California Supreme 14 Court available electronically, which show as follows. 15 Following his conviction in Los Angeles County Superior Court Case No. MA070710, Petitioner filed a 16 habeas petition in the trial court on or about December 10 or 12, 2018, which was resolved adversely to him in 17 2019. Petitioner then filed a habeas petition in the California Court of Appeal (Case No. B301039), which 18 was denied on October 24, 2019. Petitioner did not 19 thereafter seek relief, habeas or otherwise, in the California Supreme Court. 20 Because Petitioner has not filed a California 21 Supreme Court habeas petition (much less one that has 22 been decided by the state high court), any claims he raised in his California Court of Appeal habeas petition 23 necessarily are not exhausted. As Petitioner has not fairly presented his current federal habeas claims alleged 24 in the Petition to the California Supreme Court, the Petition is fully unexhausted. 25 26
27 1 The Court may raise exhaustion problems sua sponte and dismiss a petition summarily for lack of exhaustion. See Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir. 1998); Stone v. City 28 and County of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992). 1 [OSC at 2-3.] 2 The OSC then clearly explained to Petitioner the two options he has if the 3 Petition is unexhausted, namely, to voluntarily dismiss it without prejudice or to 4 request a stay in this case pursuant to Rhines v. Weber, 544 U.S. 269 (2005). The 5 OSC directed Petitioner take one of three actions, namely, to file a response 6 explaining how his claims are exhausted or, if he concedes that the Petition is 7 unexhausted, to either request a Rhines stay and explain why such a stay is 8 warranted or to voluntarily dismiss the case without prejudice. 9 Petitioner has filed a timely response to the OSC [Dkt. 5, “Response”]. His 10 Response, however, does not take any of the three actions required by the OSC. 11 Instead, Petitioner: complains that he has been unable to obtain transcript copies 12 from the state courts; attaches a letter from a former attorney advising him to file a 13 state appellate court habeas petition describing his inability to obtain transcripts and 14 his pro per status; and asks that this Court appoint counsel for him to investigate the 15 State of Washington prior conviction and constitutional issues. Petitioner ignores 16 the substance of the OSC and the exhaustion issue entirely, except to assert only that 17 exhaustion of state remedies was “impracticable,” because the state courts denied 18 his request for transcripts. 19 Federal courts may not grant habeas relief to a person held in state custody 20 unless the petitioner has exhausted his available state court remedies as to the issue 21 presented. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 518 (1982); 22 Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005) (“We may review the 23 merits of Petitioner’s habeas petition only if he exhausted state court remedies.”). 24 “[T]he exhaustion doctrine is designed to give the state courts a full and fair 25 opportunity to resolve federal constitutional claims before those claims are 26 presented to the federal courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); 27 see also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (to give the State the chance to 28 pass upon and resolve violations of his federal rights, a state prisoner must exhaust 1 his available state remedies before seeking federal habeas relief). 2 To satisfy the exhaustion requirement, a petitioner must “fairly present” his 3 federal claim to the state courts, i.e., give them a fair opportunity to consider and 4 correct violations of the prisoner’s federal rights. See Duncan v. Henry, 513 U.S. 5 364, 365 (1995); Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) (en 6 banc). A state prisoner seeking relief with respect to a California conviction is 7 required to fairly present his federal claims to the California Supreme Court. See 8 Baldwin, 541 U.S. at 29 (a state prisoner must fairly present his claim to a state 9 supreme court having the power of discretionary review); Keating v. Hood, 133 F.3d 10 1240, 1242 (9th Cir. 1998). 11 The record is clear that Petitioner has not raised the four claims alleged in the 12 Petition in the California Supreme Court. Indeed, he admits his failure to do so.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10
11 DANIEL WAYNE GROGAN, Case No. 2:20-cv-03483-JAK (GJS)
12 Petitioner
13 v. ORDER: SUMMARILY DISMISSING PETITION 14 CURVA, WITHOUT PREJUDICE; AND DENYING CERTIFICATE OF 15 Respondent. APPEALABILITY
17 This 28 U.S.C. § 2254 habeas action commenced on April 15, 2020, when the 18 habeas petition submitted by Petitioner was formally filed [Dkt. 1, the “Petition”]. 19 The Petition challenges a July 2018 Los Angeles County Superior Court conviction 20 suffered by Petitioner following his nolo contendere plea to an attempted robbery 21 with use of a firearm charge. [Petition at 1.] The Petition alleges four claims based 22 on allegations that: the plea agreement underlying Petitioner’s conviction has been 23 breached; there have been Brady violations; Petitioner’s counsel provided 24 ineffective assistance by failing to adequately investigate whether Petitioner’s prior 25 State of Washington conviction constituted a “strike”; and the sentencing court 26 lacked jurisdiction to consider Petitioner’s post-conviction habeas petition. 27 Rule 4 of the Rules Governing Section 2254 Cases in the United States District 28 Courts provides that a petition for writ of habeas corpus “must” be summarily 1 dismissed “[i]f it plainly appears from the petition and any attached exhibits that the 2 petitioner is not entitled to relief in the district court.” Here, it plainly appears that 3 the Petition is fully unexhausted1 and that Petitioner has failed to avail himself of his 4 available options. 5 On April 16, 2020, United States Magistrate Judge Gail J. Standish issued her 6 Order To Show Cause Re: Unexhausted Petition And Directing Response [Dkt. 4, 7 “OSC”]. The OSC noted Petitioner’s allegations that he raised his present habeas 8 claims through proceedings in both the trial court and the California Court of 9 Appeal, but that he had not sought relief in the California Supreme Court and did 10 not have any state proceedings pending at present. The OSC explained the 11 exhaustion requirement for Section 2254 petitions and then advised: 12 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has taken judicial notice of the 13 dockets of the Los Angeles County Superior Court, the California Court of Appeal, and the California Supreme 14 Court available electronically, which show as follows. 15 Following his conviction in Los Angeles County Superior Court Case No. MA070710, Petitioner filed a 16 habeas petition in the trial court on or about December 10 or 12, 2018, which was resolved adversely to him in 17 2019. Petitioner then filed a habeas petition in the California Court of Appeal (Case No. B301039), which 18 was denied on October 24, 2019. Petitioner did not 19 thereafter seek relief, habeas or otherwise, in the California Supreme Court. 20 Because Petitioner has not filed a California 21 Supreme Court habeas petition (much less one that has 22 been decided by the state high court), any claims he raised in his California Court of Appeal habeas petition 23 necessarily are not exhausted. As Petitioner has not fairly presented his current federal habeas claims alleged 24 in the Petition to the California Supreme Court, the Petition is fully unexhausted. 25 26
27 1 The Court may raise exhaustion problems sua sponte and dismiss a petition summarily for lack of exhaustion. See Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir. 1998); Stone v. City 28 and County of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992). 1 [OSC at 2-3.] 2 The OSC then clearly explained to Petitioner the two options he has if the 3 Petition is unexhausted, namely, to voluntarily dismiss it without prejudice or to 4 request a stay in this case pursuant to Rhines v. Weber, 544 U.S. 269 (2005). The 5 OSC directed Petitioner take one of three actions, namely, to file a response 6 explaining how his claims are exhausted or, if he concedes that the Petition is 7 unexhausted, to either request a Rhines stay and explain why such a stay is 8 warranted or to voluntarily dismiss the case without prejudice. 9 Petitioner has filed a timely response to the OSC [Dkt. 5, “Response”]. His 10 Response, however, does not take any of the three actions required by the OSC. 11 Instead, Petitioner: complains that he has been unable to obtain transcript copies 12 from the state courts; attaches a letter from a former attorney advising him to file a 13 state appellate court habeas petition describing his inability to obtain transcripts and 14 his pro per status; and asks that this Court appoint counsel for him to investigate the 15 State of Washington prior conviction and constitutional issues. Petitioner ignores 16 the substance of the OSC and the exhaustion issue entirely, except to assert only that 17 exhaustion of state remedies was “impracticable,” because the state courts denied 18 his request for transcripts. 19 Federal courts may not grant habeas relief to a person held in state custody 20 unless the petitioner has exhausted his available state court remedies as to the issue 21 presented. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 518 (1982); 22 Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005) (“We may review the 23 merits of Petitioner’s habeas petition only if he exhausted state court remedies.”). 24 “[T]he exhaustion doctrine is designed to give the state courts a full and fair 25 opportunity to resolve federal constitutional claims before those claims are 26 presented to the federal courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); 27 see also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (to give the State the chance to 28 pass upon and resolve violations of his federal rights, a state prisoner must exhaust 1 his available state remedies before seeking federal habeas relief). 2 To satisfy the exhaustion requirement, a petitioner must “fairly present” his 3 federal claim to the state courts, i.e., give them a fair opportunity to consider and 4 correct violations of the prisoner’s federal rights. See Duncan v. Henry, 513 U.S. 5 364, 365 (1995); Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) (en 6 banc). A state prisoner seeking relief with respect to a California conviction is 7 required to fairly present his federal claims to the California Supreme Court. See 8 Baldwin, 541 U.S. at 29 (a state prisoner must fairly present his claim to a state 9 supreme court having the power of discretionary review); Keating v. Hood, 133 F.3d 10 1240, 1242 (9th Cir. 1998). 11 The record is clear that Petitioner has not raised the four claims alleged in the 12 Petition in the California Supreme Court. Indeed, he admits his failure to do so. 13 [Petition at 3-8.] Petitioner’s bare assertion that exhaustion would be impractical 14 due to his lack of transcripts is inadequate to establish futility, particularly given that 15 he was able to pursue habeas relief in the trial court and the California Court of 16 Appeal notwithstanding his lack of transcripts. He simply failed to complete the 17 process by then proceeding to the California Supreme Court. Although Petitioner 18 was expressly advised of the availability of the Rhines stay procedure and what he 19 would need to do to request that it be invoked, he ignored that advice. He has not 20 requested any stay of this action, and on the present record, there is no basis for 21 ordering one on a sua sponte basis. 22 Accordingly, the Petition is, and remains, fully unexhausted. Given that 23 Petitioner has failed to exercise the options provided to him, the Petition is 24 unexhausted and this case must be dismissed without prejudice. Rose, 455 U.S. at 25 522. 26 For the foregoing reasons, it is plain from the face of the Petition that summary 27 dismissal of this action is required by Rule 4, because both the Petition is fully 28 unexhausted. Accordingly, IT IS ORDERED that: this action is dismissed, without 1 || prejudice, for failure to exhaust available state remedies; and Judgment shall be 2 || entered dismissing this action without prejudice. 3 In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in 4 || the United States District Courts, the Court has considered whether a certificate of 5 || appealability is warranted in this case. See 28 U.S.C. § 2253(c)(2); Slack v. 6 || McDaniel, 529 U.S. 473, 484-85 (2000). The Court concludes that a certificate of 7 || appealability is unwarranted, and thus, a certificate of appealability is DENIED. 8 9 LET JUDGMENT BE ENTERED ACCORDINGLY. 10 11 12 || Dated: May 8, 2020 C| he 13 JOHN A. KRONSTADT UNITED STATES DISTRICT JUDGE 14 15 16 17 || PRESENTED BY:
19 | GalL J. STANDISH 20 || UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28