1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDDIE NIETO, Case No. 1:21-cv-01582-JLT-HBK 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS AMENDED PETITION FOR FAILURE TO EXHAUST1 14 THERESA CISNEROS, FOURTEEN-DAY OBJECTION PERIOD 15 Respondent. (Doc. Nos. 16, 20) 16
17 18 19 Petitioner Eddie Nieto, a state prisoner proceeding pro se, has pending an amended 20 petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 16). Respondent filed a 21 motion to dismiss on June 3, 2022. As of the date of this order, Petitioner has not filed a response 22 to the motion, nor requested an extension of time to respond, and the time for doing so has 23 expired. (See Doc. No. 9 at ¶ 3, advising Petitioner that he has thirty (30) days to file a response 24 if Respondent files motion to dismiss). For the reasons set forth more fully below, the 25 undersigned recommends granting Respondent’s motion to dismiss because the grounds for relief 26 raised in the amended petition are unexhausted. 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 I. BACKGROUND 2 Petitioner challenges his conviction by a jury for committing lewd acts on a six-year old 3 girl and a special allegation that he kidnapped the victim. (See Doc. No. 16). The amended 4 petition raises two grounds for relief: (1) Petitioner was denied a fair trial because a jury request 5 for readback during deliberation was denied; and (2) the jury was not given further explanation of 6 the kidnapping jury instructions (specifically regarding physical force and deception) after it sent 7 a note to the trial judge.2 (Id. at 3-4). Respondent argues the amended petition should be 8 dismissed as unexhausted. Petitioner did not file a response. 9 II. APPLICABLE LAW AND ANALYSIS 10 Under Rule 4, if a petition is not dismissed at screening, the judge “must order the 11 respondent to file an answer, motion, or other response” to the petition. R. Governing 2254 Cases 12 4. The Advisory Committee Notes to Rule 4 state that “the judge may want to authorize the 13 respondent to make a motion to dismiss based upon information furnished by respondent.” A 14 motion to dismiss a petition for writ of habeas corpus is construed as a request for the court to 15 dismiss under Rule 4 of the Rules Governing Section 2254 Cases. O’Bremski v. Maass, 915 F.2d 16 418, 420 (9th Cir. 1990). Under Rule 4, a district court must dismiss a habeas petition if it 17 “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 18 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 19 A petitioner in state custody who wishes to proceed on a federal petition for a writ of 20 habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). Exhaustion is a 21 “threshold” matter that must be satisfied before the court can consider the merits of each claim. 22 Day v. McDonough, 547 U.S. 198, 205 (2006). The exhaustion doctrine is not a jurisdictional 23 issue but is based on comity to permit the state court the initial opportunity to resolve any alleged 24 constitutional deprivations. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 25 455 U.S. 509, 518 (1982). To satisfy the exhaustion requirement, petitioner must provide the
26 2 Respondent also argues “it is unclear what specific federal constitutional claim Petitioner is raising.” (Doc. No. 20). Because the undersigned recommends dismissal of the amended petition for failure to 27 exhaust, it is unnecessary to consider whether the grounds asserted by Petitioner are cognizable on federal habeas review. See Cooper v. Neven, 641 F.3d 322, 327-28 (9th Cir. 2011) (stating that when a particular 28 issue is dispositive, a district court “need not consider alternative reasons for dismissing the petition.”). 1 highest state court with a full and fair opportunity to consider each claim before presenting it to 2 the federal court. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 3 U.S. 364, 365 (1995). Exhaustion is determined on a claim-by-claim basis. Insyxieng-May v. 4 Morgan, 403 F.3d 657, 667 (9th Cir. 2005). And the burden of proving exhaustion rests with the 5 petitioner. Darr v. Burford, 339 U.S. 200, 218 (1950) (overruled in part on other grounds by Fay 6 v. Noia, 372 U.S. 391 (1963)). A failure to exhaust may only be excused where the petitioner 7 shows that “there is an absence of available State corrective process” or “circumstances exist that 8 render such process ineffective to protect the rights of the applicant.” 28 U.S.C. 9 § 2254(b)(1)(B)(i)-(ii). 10 Here, Petitioner does not show that “there is an absence of available State corrective 11 process” or “circumstances exist that render such process ineffective to protect the rights of the 12 applicant.” Nor does the amended petition indicate that Petitioner sought habeas review before 13 state appellate or supreme court.3 (See Doc. No. 16 at 5-6). The record reveals that Petitioner 14 filed a direct appeal of his conviction in the state appellate court; followed by a petition in the 15 California Supreme Court for review of the appellate court decision affirming the trial court 16 judgment. (See Doc. Nos. 15-2, 15-3). The petition for review in the California Supreme Court 17 raised two issues: (1) the use of an “erroneous” CALCRIM 1201 pattern jury instruction on 18 kidnapping caused undue prejudice and lessened the prosecutor’s burden of proof in violation of 19 his Sixth and Fourteenth Amendment rights to a fair trial and due process, and (2) there was 20 insufficient evidence of physical force or fear under the theory of kidnapping elected by the 21 prosecution. (Doc. No. 15-3 at 2). 22 As argued by Respondent, Petitioner does not raise either a claim of instructional error or 23 a claim of insufficient evidence that was presented to the California Supreme Court in his 24 operative amended petition. (Doc. No. 20 at 3). Instead, the amended petition includes two 25 entirely different claims: a claim of trial court error stemming from the trial court failure to 26 3 The Court takes judicial notice of the California Courts Appellate Courts Case Information online 27 database pursuant to Rule 201 of the Federal Rules of Evidence, which lists no appellate or supreme court habeas cases for Petitioner. See https://appellatecases.courtinfo.ca.gov/search.cfm?dist=0 (search “Search 28 by Party” for “E Nieto”).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDDIE NIETO, Case No. 1:21-cv-01582-JLT-HBK 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS AMENDED PETITION FOR FAILURE TO EXHAUST1 14 THERESA CISNEROS, FOURTEEN-DAY OBJECTION PERIOD 15 Respondent. (Doc. Nos. 16, 20) 16
17 18 19 Petitioner Eddie Nieto, a state prisoner proceeding pro se, has pending an amended 20 petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 16). Respondent filed a 21 motion to dismiss on June 3, 2022. As of the date of this order, Petitioner has not filed a response 22 to the motion, nor requested an extension of time to respond, and the time for doing so has 23 expired. (See Doc. No. 9 at ¶ 3, advising Petitioner that he has thirty (30) days to file a response 24 if Respondent files motion to dismiss). For the reasons set forth more fully below, the 25 undersigned recommends granting Respondent’s motion to dismiss because the grounds for relief 26 raised in the amended petition are unexhausted. 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 I. BACKGROUND 2 Petitioner challenges his conviction by a jury for committing lewd acts on a six-year old 3 girl and a special allegation that he kidnapped the victim. (See Doc. No. 16). The amended 4 petition raises two grounds for relief: (1) Petitioner was denied a fair trial because a jury request 5 for readback during deliberation was denied; and (2) the jury was not given further explanation of 6 the kidnapping jury instructions (specifically regarding physical force and deception) after it sent 7 a note to the trial judge.2 (Id. at 3-4). Respondent argues the amended petition should be 8 dismissed as unexhausted. Petitioner did not file a response. 9 II. APPLICABLE LAW AND ANALYSIS 10 Under Rule 4, if a petition is not dismissed at screening, the judge “must order the 11 respondent to file an answer, motion, or other response” to the petition. R. Governing 2254 Cases 12 4. The Advisory Committee Notes to Rule 4 state that “the judge may want to authorize the 13 respondent to make a motion to dismiss based upon information furnished by respondent.” A 14 motion to dismiss a petition for writ of habeas corpus is construed as a request for the court to 15 dismiss under Rule 4 of the Rules Governing Section 2254 Cases. O’Bremski v. Maass, 915 F.2d 16 418, 420 (9th Cir. 1990). Under Rule 4, a district court must dismiss a habeas petition if it 17 “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 18 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 19 A petitioner in state custody who wishes to proceed on a federal petition for a writ of 20 habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). Exhaustion is a 21 “threshold” matter that must be satisfied before the court can consider the merits of each claim. 22 Day v. McDonough, 547 U.S. 198, 205 (2006). The exhaustion doctrine is not a jurisdictional 23 issue but is based on comity to permit the state court the initial opportunity to resolve any alleged 24 constitutional deprivations. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 25 455 U.S. 509, 518 (1982). To satisfy the exhaustion requirement, petitioner must provide the
26 2 Respondent also argues “it is unclear what specific federal constitutional claim Petitioner is raising.” (Doc. No. 20). Because the undersigned recommends dismissal of the amended petition for failure to 27 exhaust, it is unnecessary to consider whether the grounds asserted by Petitioner are cognizable on federal habeas review. See Cooper v. Neven, 641 F.3d 322, 327-28 (9th Cir. 2011) (stating that when a particular 28 issue is dispositive, a district court “need not consider alternative reasons for dismissing the petition.”). 1 highest state court with a full and fair opportunity to consider each claim before presenting it to 2 the federal court. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 3 U.S. 364, 365 (1995). Exhaustion is determined on a claim-by-claim basis. Insyxieng-May v. 4 Morgan, 403 F.3d 657, 667 (9th Cir. 2005). And the burden of proving exhaustion rests with the 5 petitioner. Darr v. Burford, 339 U.S. 200, 218 (1950) (overruled in part on other grounds by Fay 6 v. Noia, 372 U.S. 391 (1963)). A failure to exhaust may only be excused where the petitioner 7 shows that “there is an absence of available State corrective process” or “circumstances exist that 8 render such process ineffective to protect the rights of the applicant.” 28 U.S.C. 9 § 2254(b)(1)(B)(i)-(ii). 10 Here, Petitioner does not show that “there is an absence of available State corrective 11 process” or “circumstances exist that render such process ineffective to protect the rights of the 12 applicant.” Nor does the amended petition indicate that Petitioner sought habeas review before 13 state appellate or supreme court.3 (See Doc. No. 16 at 5-6). The record reveals that Petitioner 14 filed a direct appeal of his conviction in the state appellate court; followed by a petition in the 15 California Supreme Court for review of the appellate court decision affirming the trial court 16 judgment. (See Doc. Nos. 15-2, 15-3). The petition for review in the California Supreme Court 17 raised two issues: (1) the use of an “erroneous” CALCRIM 1201 pattern jury instruction on 18 kidnapping caused undue prejudice and lessened the prosecutor’s burden of proof in violation of 19 his Sixth and Fourteenth Amendment rights to a fair trial and due process, and (2) there was 20 insufficient evidence of physical force or fear under the theory of kidnapping elected by the 21 prosecution. (Doc. No. 15-3 at 2). 22 As argued by Respondent, Petitioner does not raise either a claim of instructional error or 23 a claim of insufficient evidence that was presented to the California Supreme Court in his 24 operative amended petition. (Doc. No. 20 at 3). Instead, the amended petition includes two 25 entirely different claims: a claim of trial court error stemming from the trial court failure to 26 3 The Court takes judicial notice of the California Courts Appellate Courts Case Information online 27 database pursuant to Rule 201 of the Federal Rules of Evidence, which lists no appellate or supreme court habeas cases for Petitioner. See https://appellatecases.courtinfo.ca.gov/search.cfm?dist=0 (search “Search 28 by Party” for “E Nieto”). 1 adequately respond to a jury request for readback during deliberation; and a construed claim of 2 trial court error stemming from a request from the jury for an explanation of the kidnapping jury 3 instruction (specifically regarding physical force and deception). (Doc. No. 16 at 3-4). Because 4 the substance of both claims raised in the state courts is different than the substance of the claims 5 in the amended petition, the state supreme court has not had a fair opportunity to rule on the 6 merits of the issues raised in Petitioner’s amended petition. See 28 U.S.C. § 2254(b). Because 7 the amended petition contains only unexhausted claim, it must be dismissed without. If Petitioner 8 has in fact exhausted these exact claims before the state courts, he should provide proof of this 9 exhaustion in his objections to these findings and recommendations. 10 IV. CERTIFICATE OF APPEALABILITY 11 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to 12 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 13 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); 14 see also R. Governing Section 2254 Cases 11 (requires a district court to issue or deny a 15 certificate of appealability when entering a final order adverse to a petitioner); Ninth Circuit Rule 16 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court 17 denies habeas relief on procedural grounds without reaching the merits of the underlying 18 constitutional claims, the court should issue a certificate of appealability only “if jurists of reason 19 would find it debatable whether the petition states a valid claim of the denial of a constitutional 20 right and that jurists of reason would find it debatable whether the district court was correct in its 21 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 22 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 23 could not conclude either that the district court erred in dismissing the petition or that the 24 petitioner should be allowed to proceed further.” Id. Here, reasonable jurists would not find the 25 undersigned’s conclusion debatable or conclude that petitioner should proceed further. The 26 undersigned therefore recommends that a certificate of appealability not issue. 27 //// 28 //// 1 Accordingly, it is RECOMMENDED: 2 1. Respondent’s Motion to Dismiss (Doc. No. 20) be GRANTED. 3 2. The amended petition (Doc. No. 16) be DISMISSED without prejudice. 4 3. Petitioner be denied a certificate of appealability. 5 NOTICE TO PARTIES 6 These findings and recommendations will be submitted to the United States district judge 7 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 8 | days after being served with these findings and recommendations, a party may file written 9 | objections with the court. The document should be captioned “Objections to Magistrate Judge’s 10 | Findings and Recommendations.” Parties are advised that failure to file objections within the 11 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 12 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 Dated: __ July 27. 2022 law Nh. fareh Base □□□ 15 HELENA M. BARCH-KUCHTA 6 UNITED STATES MAGISTRATE JUDGE
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