Frank Dixon v. Warden

• Court: District Court, C.D. California
• Decided: December 20, 2022
• Docket: 2:22-cv-09135
• Status: Unknown

Opinion

Case 2:22-cv-09135-AB-JDE Document 4 Filed 12/20/22 Page 1 of 7 Page ID #:13

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 FRANK DIXON, ) No. 2:22-cv-09135-AB-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE 13 v. ) WHY THE PETITION ) 14 UNKNOWN, ) SHOULD NOT BE ) DISMISSED ) 15 Respondent. ) ) 16

17 I. 18 INTRODUCTION 19 On December 15, 2022, the Court received from Frank Dixon 20 (“Petitioner”), a California state prisoner at North Kern State Prison 21 proceeding pro se, a “Petition for Writ of Habeas Corpus” on a California state 22 form, seeking to challenge a July 2019 conviction following a jury trial and 23 August 2019 sentence of 17 years and four months imposed by the Superior 24 Court for the State of California, County of Los Angeles County for violations 25 of “12022.7(A) 667(A)(1). Dkt. 1 (“Petition” or “Pet.”) at 2. 26 Under Rule 4 of the Rules Governing Section 2254 Cases in the United 27 States District Courts (“Habeas Rules”), the Court has reviewed the Petition, 28 Case 2:22-cv-09135-AB-JDE Document 4 Filed 12/20/22 Page 2 of 7 Page ID #:14

1 finds it appears to suffer from several defects and orders Petitioner to respond 2 as set forth further below. 3 II. 4 PROCEDURAL HISTORY 5 As noted, the judgment of conviction that Petitioner seeks to challenge 6 was imposed by the Los Angeles County Superior Court in 2019 in case 7 number VA146759. Pet at 2. The Petition asserts a single ground for relief, 8 which, in its entirety, states: “12022.1(A) 667(A)91) 667.5.” Pet. at 3. In 9 support, Petitioner asserts, in full: “The Judge Ito impose the high term when 10 at my sentencing when he cannot do so because there were never no 11 aggravating factors to do so.” Id. Petitioner asserts that he appealed the 12 conviction in the Second Appellate Court Division 4, resulting in the case 13 being “fully reversed” in December 2021 in case number B229436 (this case 14 number appears to be in error). Id. at 5. Petitioner asserts that he also sought 15 review by the California Supreme Court in case number B299436 resulting in the case being “remanded back to [trial] court” on an unspecified date. Id. 16 According to California Appellate Court on-line information, on 17 October 19, 2020, the California Court of Appeal, Second Appellate District, 18 Division Four, in People v. Frank Dixon, Case No. B299436, “conditionally 19 reversed” Petitioner’s judgment of conviction and remanded to the trial court 20 with directions to conduct a diversion eligibility hearing under Cal. Penal 21 Code § 1001.36. See Appellate Courts Case Information (“Appellate Courts”) 22 at https://appellatecases.courtinfo.ca.gov. 1 The Appellate Courts also indicate 23

24 1 Courts may take judicial notice of the existence of court filings and another 25 court’s orders. See Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking judicial notice of opinion and briefs filed in another proceeding); United States ex rel. 26 Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 27 1992) (courts “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to 28 matters at issue” (citation omitted)). 2 Case 2:22-cv-09135-AB-JDE Document 4 Filed 12/20/22 Page 3 of 7 Page ID #:15

1 a Petition for Review in Petitioner’s case was filed with the California Supreme 2 Court, with the Petition being denied on December 23, 2022 in Case No. 3 S265091. Id. On-line records of the Los Angeles County Superior Courts for 4 People v. Frank Dixon, Case No. VA146759, confirm trial proceedings in July 5 2019 and reflected subsequent proceedings at the trial court level in 2021 and 6 2022, with a Notice of Appeal following those subsequent proceedings filed on 7 August 3, 2022. See https://www.lacourts.org. 8 As noted, the Court received the Petition, on a state court form, on 9 December 12, 2022, although the signature line states that it was signed on December 23, 2022. 10 11 IIII. 12 DISCUSSION 13 Pursuant to Rule 4 of the Habeas Rules, the Court must review the 14 Petition and, if it plainly appears from the Petition and any attached exhibits 15 that Petitioner is not entitled to relief, the Court must dismiss the Petition. 16 Here, the Petition appears subject to dismissal for at least three and possibly 17 five reasons: (1) Petitioner has not submitted his Petition on the form habeas 18 petition approved by the Central District of California; (2) Petitioner asserts a 19 single vague claim that does not facially assert any federal constitutional error; 20 (3) Petitioner has not named an appropriate respondent; in addition, (4) the 21 Petition may be unexhausted; and (5) the Petition may be subject to Younger 22 abstention, all as explained further below. 23 First, the Petition was not submitted on a form approved by this district. 24 Rule 2(d) of the Habeas Rules authorizes district courts to require habeas 25 petitions be filed in a form prescribed by the Local Rules. This Court has such 26 a Local Rule. See Local Rule 83-16.1 (“A petition for writ of habeas corpus . . . 27 shall be submitted on the forms approved and supplied by the Court.”). The 28 Petition is subject to dismissal for failure to use a Court-approved form. 3 Case 2:22-cv-09135-AB-JDE Document 4 Filed 12/20/22 Page 4 of 7 Page ID #:16

1 Second, Petitioner has not clearly set forth the grounds that plausibly 2 suggest entitlement to relief. Habeas Rules 2(c) and 4 require a statement of all 3 grounds for relief and the facts supporting each ground; the petition should 4 state facts that point to a real possibility of constitutional error and show the 5 relationship of the facts to the claim. See Habeas Rule 4, Advisory Committee 6 Notes to 1976 Adoption; Mayle v. Felix, 545 U.S. 644, 655 (2005); O’Bremski 7 v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (as amended). Allegations in a 8 petition that are vague, conclusory, palpably incredible, or unsupported by a 9 statement of specific facts, are insufficient to warrant relief, and are subject to 10 summary dismissal. See, e.g., Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 11 1995); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). Here, the Petition only 12 asserts numbers as the basis for the Petition, allegations that are vague and do 13 not facially reflect the real possibility of federal constitutional error. As such, 14 the Petition is subject to dismissal. 15 Third, Petitioner has not named a proper respondent. The Ninth Circuit 16 has held the failure to name the correct respondent destroys personal 17 jurisdiction. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) 18 (as amended); Stanley v. Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) 19 (as amended). Typically, the proper respondent for a habeas petition is the 20 warden of the facility in which the petitioner is incarcerated. See Stanley, 21 21 F.3d at 360; see also Habeas Rule 2(a) (“If the petitioner is currently in custody 22 under a state-court judgment, the petition must name as respondent the state 23 officer who has custody.”). 24 Separately, under 28 U.S.C. § 2254(b)(1), federal habeas relief may not 25 be granted unless Petitioner has exhausted the remedies available in state 26 courts or an exception to the exhaustion requirement applies. Exhaustion 27 requires that the petitioner’s claims be fairly presented to the state courts and 28 be disposed of on the merits by the highest court of the state. James, 24 F.3d at 4 Case 2:22-cv-09135-AB-JDE Document 4 Filed 12/20/22 Page 5 of 7 Page ID #:17

1 24; Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979); see also Libberton v. 2 Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). A claim has not been fairly 3 presented to a state court unless the petitioner has described both the operative 4 facts and the federal legal theory on which the claim is based. See Duncan v. 5 Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 6 270, 275-78 (1971); Greenway v. Schriro, 653 F.3d 790, 801 (9th Cir. 2011). As 7 a matter of comity, a federal court will not entertain a habeas corpus petition 8 unless the petitioner has exhausted the available state judicial remedies on 9 every ground presented in the petition. See Rose v. Lundy, 455 U.S. 509, 518- 10 22 (1982). Petitioner has the burden of demonstrating that he has exhausted his 11 available state remedies. See, e.g., Williams v. Craven, 460 F.2d 1253, 1254 12 (9th Cir. 1972) (per curiam). Here, because Petitioner has not clearly set forth 13 his claims, and because Petitioner does not use an approved form that would 14 require information about exhaustion, the Court does not make a 15 determination as to whether those claims have been exhausted, but notifies 16 Petitioner of the requirement should Petition opt to file an amended petition. 17 In addition, as noted, state court records reflect ongoing proceedings in 18 the superior court in 2022 and reflect a “Notice of Appeal” filed in those 19 proceedings in August 2022. To the extent Petitioner requests that this Court 20 intervene in his ongoing state criminal proceeding, including while the 21 proceeding is on appeal, Younger abstention is warranted. Comity and 22 federalism require federal courts to abstain from intervening in pending state 23 criminal proceedings absent extraordinary circumstances. See Younger v. 24 Harris, 401 U.S. 37, 43-45 (1971). Younger abstention is warranted when: (1) 25 the state court proceeding is ongoing; (2) the proceeding implicates important 26 state interests; (3) the state proceeding provides an adequate opportunity to 27 raise constitutional challenges; and (4) the requested relief “seek[s] to enjoin” 28 or has “the practical effect of enjoining” the ongoing state judicial proceeding. 5 Case 2:22-cv-09135-AB-JDE Document 4 Filed 12/20/22 Page 6 of 7 Page ID #:18

1 Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (citation omitted). In 2 such circumstances, federal district courts should abstain from intervening in 3 the ongoing state criminal proceeding absent extraordinary circumstances. See, 4 e.g., Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 5 435-37 (1982); (absent a showing of “bad faith, harassment, or some other 6 extraordinary circumstance,” federal courts should abstain from interfering in 7 ongoing state judicial proceedings); Kugler v. Helfant, 421 U.S. 117, 130 8 (1975) (explaining that Supreme Court precedent establishes that “at least in 9 the absence of ‘extraordinary circumstances’ federal courts must refuse to 10 intervene in state criminal proceedings to suppress the use of evidence claimed 11 to have been obtained through unlawful means”). 12 IV. 13 ORDER 14 For the foregoing reasons, the Petition is subject to dismissal. Petitioner 15 is ORDERED TO SHOW CAUSE, in writing, by no later than thirty (30) 16 days from the date of this Order, why this action should not be dismissed 17 under Habeas Rule 4 for the reasons stated above. To the extent Petitioner 18 contends he has exhausted his state court remedies, Petitioner is directed to 19 provide information regarding his efforts to exhaust his claims in the state 20 courts, and attach copies of any documents establishing that his claims are 21 indeed exhausted. 22 Alternatively, Petitioner may file an amended petition within thirty (30) 23 days of the date of this Order to attempt to cure the above-referenced defects. 24 The Clerk is directed to send Petitioner a blank copy of the Central District 25 habeas petition form for this purpose. The amended petition should reflect the 26 same case number, be clearly labeled “First Amended Petition,” and be filled 27 out completely, including naming the appropriate respondent. In ¶ 8 of the 28 6 Case 2:22-cv-09135-AB-JDE Document 4 Filed 12/20/22 Page 7of7 Page ID#:19

1 || First Amended Petition, Petitioner should specify separately and concisely 2 ||each federal constitutional claim that he seeks to raise and answer all of the 3 || questions pertaining to each such claim. If Petitioner contends that he 4 ||exhausted his state remedies, he should list such filings in □□□ 4-6 of the habeas 5 || petition form. Petitioner should specify all of the grounds raised in such filings, 6 || along with the case number, the date of decision, and the result. Petitioner 7 ||should also answer all questions and provide all information regarding any 8 || ongoing proceedings in state court. 9 Petitioner is cautioned that a failure to respond timely in compliance 10 || with this Order could result in this action being dismissed for the foregoing 11 |/reasons, for failure to prosecute, and for failure to comply with a Court order. 12 ||See Fed. R. Civ. P. 41(b). 13 14 || Dated: December 20, 2022 15 fF Kh 16 IGN D. EARLY 17 nited States Magistraté Judge 18 19 20 21 22 23 24 25 26 27 28