8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 ERNEST HARRIS, Case No. 1:24-cv-00361-EPG-HC
12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 13 v. HABEAS CORPUS WITHOUT PREJUDICE AND DENY PETITIONER’S MOTION FOR 14 C. PFEIFER, et al., EMERGENCY INJUNCTION 15 Respondents. ORDER DIRECTING CLERK OF COURT 16 TO ASSIGN DISTRICT JUDGE
17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. Given that the instant petition is unexhausted, the undersigned 20 recommends that the petition be dismissed without prejudice and the motion for emergency 21 injunction be denied. 22 I. 23 BACKGROUND 24 On March 28, 2024, Petitioner filed the instant petition for writ of habeas corpus 25 challenging a loss of ninety days of credit along with other presentence credit calculations. (ECF 26 No. 1.) On April 10, 2024, the Court ordered Petitioner to show cause why the petition should 27 not be dismissed for failure to exhaust state judicial remedies. (ECF No. 6.) On May 13, 2024, the Court received Petitioner response and a motion for emergency injunction. (ECF No. 7.) 1 II. 2 DISCUSSION 3 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 4 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 5 to file a response, if it “plainly appears from the petition and any attached exhibits that the 6 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 7 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 8 A. Exhaustion 9 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 10 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 11 on comity to the state court and gives the state court the initial opportunity to correct the state’s 12 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 13 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 14 providing the highest state court with a full and fair opportunity to consider each claim before 15 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 16 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 17 In the petition, Petitioner states, “I’m in the 3 level as we speak. But it is March 24, 2024. 18 I suppose to parole March 25, 2024. I do not have time to wait for their answer.” (ECF No. 1 at 19 5.1) The Court previously construed this language to mean that Petitioner is in the process of 20 exhausting his administrative remedies at the third level of review. However, a petitioner in state 21 custody who is proceeding with a federal petition for writ of habeas corpus must have 22 “exhausted the remedies available in the courts of the State[.]” 28 U.S.C. § 2254(b)(1)(A) 23 (emphasis added). Thus, to satisfy the exhaustion requirement, Petitioner must have filed a state 24 habeas petition raising the claims now presented in the California Supreme Court. 25 In his response to the order to show cause, Petitioner alleges various complications he has 26 experienced regarding appeals he has pursued with the California Department of Corrections and 27 Rehabilitation (“CDCR”). (ECF No. 7.) However, as set forth above and in the order to show 1 cause, a petitioner in state custody who is proceeding with a federal petition for writ of habeas 2 corpus must have “exhausted the remedies available in the courts of the State[.]” 28 U.S.C. 3 § 2254(b)(1)(A) (emphasis added). The Court recognizes that it appears Petitioner has 4 encountered difficulties pursuing his CDCR grievances, but such difficulties do not prevent 5 Petitioner from filing state habeas petitions in the state court. 6 Petitioner has not established that he falls within one of the statutory exceptions to the 7 exhaustion requirement or that his failure to exhaust available state remedies should be excused. 8 See 28 U.S.C. § 2254(b)(1)(B) (A petitioner is excused from the exhaustion requirement if “(i) 9 there is an absence of available State corrective process; or (ii) circumstances exist that render 10 such process ineffective to protect the rights of the applicant.”); Duckworth v. Serrano, 454 U.S. 11 1, 3 (1981) (“An exception [to the exhaustion requirement] is made only if there is no 12 opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to 13 render futile any effort to obtain relief.”); Hendricks v. Zenon, 993 F.2d 664, 672 (9th Cir. 1993) 14 (recognizing that exhaustion requirement may be excused “in rare cases where exceptional 15 circumstances of peculiar urgency are shown to exist” (quoting Granberry v. Greer, 481 U.S. 16 129, 134 (1987))). 17 Here, Petitioner has not demonstrated that he filed state habeas petitions in state court, 18 and if Petitioner has not sought relief in the California Supreme Court for the claims that he 19 raises in the petition, the Court cannot proceed to the merits of those claims. 28 U.S.C. 20 § 2254(b)(1). Accordingly, the undersigned recommends that the petition be dismissed without 21 prejudice. 22 B. Motion for Emergency Injunction 23 Petitioner has moved for emergency injunction. (ECF No. 7.) “A preliminary injunction 24 is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 25 555 U.S. 7, 24 (2008) (citation omitted). A federal district court may issue emergency injunctive 26 relief only if it has personal jurisdiction over the parties and subject matter jurisdiction over the 27 lawsuit. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) 1 upon service of summons or other authority-asserting measure stating the time within which the 2 party must appear to defend”). “A plaintiff seeking a preliminary injunction must establish that 3 he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 4 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the 5 public interest.” Glossip v. Gross, 576 U.S. 863, 876 (2015) (internal quotation marks omitted) 6 (quoting Winter, 555 U.S. at 20). “Under Winter, plaintiffs must establish that irreparable harm 7 is likely, not just possible, in order to obtain a preliminary injunction.” Alliance for the Wild 8 Rockies v.
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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 ERNEST HARRIS, Case No. 1:24-cv-00361-EPG-HC
12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 13 v. HABEAS CORPUS WITHOUT PREJUDICE AND DENY PETITIONER’S MOTION FOR 14 C. PFEIFER, et al., EMERGENCY INJUNCTION 15 Respondents. ORDER DIRECTING CLERK OF COURT 16 TO ASSIGN DISTRICT JUDGE
17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. Given that the instant petition is unexhausted, the undersigned 20 recommends that the petition be dismissed without prejudice and the motion for emergency 21 injunction be denied. 22 I. 23 BACKGROUND 24 On March 28, 2024, Petitioner filed the instant petition for writ of habeas corpus 25 challenging a loss of ninety days of credit along with other presentence credit calculations. (ECF 26 No. 1.) On April 10, 2024, the Court ordered Petitioner to show cause why the petition should 27 not be dismissed for failure to exhaust state judicial remedies. (ECF No. 6.) On May 13, 2024, the Court received Petitioner response and a motion for emergency injunction. (ECF No. 7.) 1 II. 2 DISCUSSION 3 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 4 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 5 to file a response, if it “plainly appears from the petition and any attached exhibits that the 6 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 7 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 8 A. Exhaustion 9 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 10 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 11 on comity to the state court and gives the state court the initial opportunity to correct the state’s 12 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 13 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 14 providing the highest state court with a full and fair opportunity to consider each claim before 15 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 16 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 17 In the petition, Petitioner states, “I’m in the 3 level as we speak. But it is March 24, 2024. 18 I suppose to parole March 25, 2024. I do not have time to wait for their answer.” (ECF No. 1 at 19 5.1) The Court previously construed this language to mean that Petitioner is in the process of 20 exhausting his administrative remedies at the third level of review. However, a petitioner in state 21 custody who is proceeding with a federal petition for writ of habeas corpus must have 22 “exhausted the remedies available in the courts of the State[.]” 28 U.S.C. § 2254(b)(1)(A) 23 (emphasis added). Thus, to satisfy the exhaustion requirement, Petitioner must have filed a state 24 habeas petition raising the claims now presented in the California Supreme Court. 25 In his response to the order to show cause, Petitioner alleges various complications he has 26 experienced regarding appeals he has pursued with the California Department of Corrections and 27 Rehabilitation (“CDCR”). (ECF No. 7.) However, as set forth above and in the order to show 1 cause, a petitioner in state custody who is proceeding with a federal petition for writ of habeas 2 corpus must have “exhausted the remedies available in the courts of the State[.]” 28 U.S.C. 3 § 2254(b)(1)(A) (emphasis added). The Court recognizes that it appears Petitioner has 4 encountered difficulties pursuing his CDCR grievances, but such difficulties do not prevent 5 Petitioner from filing state habeas petitions in the state court. 6 Petitioner has not established that he falls within one of the statutory exceptions to the 7 exhaustion requirement or that his failure to exhaust available state remedies should be excused. 8 See 28 U.S.C. § 2254(b)(1)(B) (A petitioner is excused from the exhaustion requirement if “(i) 9 there is an absence of available State corrective process; or (ii) circumstances exist that render 10 such process ineffective to protect the rights of the applicant.”); Duckworth v. Serrano, 454 U.S. 11 1, 3 (1981) (“An exception [to the exhaustion requirement] is made only if there is no 12 opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to 13 render futile any effort to obtain relief.”); Hendricks v. Zenon, 993 F.2d 664, 672 (9th Cir. 1993) 14 (recognizing that exhaustion requirement may be excused “in rare cases where exceptional 15 circumstances of peculiar urgency are shown to exist” (quoting Granberry v. Greer, 481 U.S. 16 129, 134 (1987))). 17 Here, Petitioner has not demonstrated that he filed state habeas petitions in state court, 18 and if Petitioner has not sought relief in the California Supreme Court for the claims that he 19 raises in the petition, the Court cannot proceed to the merits of those claims. 28 U.S.C. 20 § 2254(b)(1). Accordingly, the undersigned recommends that the petition be dismissed without 21 prejudice. 22 B. Motion for Emergency Injunction 23 Petitioner has moved for emergency injunction. (ECF No. 7.) “A preliminary injunction 24 is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 25 555 U.S. 7, 24 (2008) (citation omitted). A federal district court may issue emergency injunctive 26 relief only if it has personal jurisdiction over the parties and subject matter jurisdiction over the 27 lawsuit. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) 1 upon service of summons or other authority-asserting measure stating the time within which the 2 party must appear to defend”). “A plaintiff seeking a preliminary injunction must establish that 3 he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 4 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the 5 public interest.” Glossip v. Gross, 576 U.S. 863, 876 (2015) (internal quotation marks omitted) 6 (quoting Winter, 555 U.S. at 20). “Under Winter, plaintiffs must establish that irreparable harm 7 is likely, not just possible, in order to obtain a preliminary injunction.” Alliance for the Wild 8 Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). 9 As set forth in section II(A), supra, the petition should be dismissed for failure to exhaust 10 state judicial remedies, and thus, Petitioner cannot demonstrate that he is likely to succeed on the 11 merits. See 28 U.S.C. § 2254(b)(1)(A) (“An application for writ of habeas corpus on behalf of a 12 person in custody pursuant to the judgment of a State court shall not be granted unless it appears 13 that the applicant has exhausted the remedies available in the courts of the State[.]”). 14 Accordingly, the undersigned recommends that the motion for emergency injunction be denied. 15 III. 16 RECOMMENDATION & ORDER 17 Based on the foregoing, the undersigned HEREBY RECOMMENDS that: 18 1. The petition for writ of habeas corpus be DISMISSED WITHOUT PREJUDICE for 19 failure to exhaust state judicial remedies; and 20 2. Petitioner’s motion for emergency injunction (ECF No. 7) be DENIED. 21 Further, the Clerk of Court is DIRECTED to randomly assign a District Court Judge to 22 the present matter. 23 This Findings and Recommendation is submitted to the assigned United States District 24 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 25 Rules of Practice for the United States District Court, Eastern District of California. Within 26 THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 27 written objections with the court and serve a copy on all parties. Such a document should be 1 | United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 2 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 3 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 4 | 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 IT IS SO ORDERED. 7) Dated: _May 22, 2024 [Je hey 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28