1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TYRONE WILLIAMS, No. 1:24-cv-00129-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION 14 TO SUMMARILY DISMISS PEOPLE OF THE STATE OF UNEXHAUSTED PETITION 15 CALIFORNIA, [TWENTY-ONE DAY OBJECTION 16 Respondent. DEADLINE] 17 18 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed the instant habeas petition on 20 January 29, 2024, challenging his 2020 conviction in Tulare County Superior Court of 21 committing lewd acts on a child under 14 years of age, sodomy, and rape. Because the petition is 22 unexhausted, the Court will recommend it be DISMISSED. 23 DISCUSSION 24 A. Preliminary Review of Petition 25 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 26 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 27 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 28 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 1 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 2 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 3 2001). 4 B. Exhaustion 5 A petitioner who is in state custody and wishes to collaterally challenge his conviction by 6 a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). 7 The exhaustion doctrine is based on comity to the state court and gives the state court the initial 8 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 9 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 10 A petitioner can satisfy the exhaustion requirement by providing the highest state court 11 with a full and fair opportunity to consider each claim before presenting it to the federal court. 12 Duncan v. Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court 13 was given a full and fair opportunity to hear a claim if the petitioner has presented the highest 14 state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney 15 v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 16 Additionally, the petitioner must have specifically told the state court that he was raising a 17 federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme 18 Court reiterated the rule as follows:
19 In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners “fairly presen[t]” federal claims to the state 20 courts in order to give the State the “opportunity to pass upon and correct alleged violations of the prisoners' federal rights” (some internal quotation marks omitted). 21 If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners 22 are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due 23 process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 24 25 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating:
26 Our rule is that a state prisoner has not “fairly presented” (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those 27 claims were based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held 28 that the petitioner must make the federal basis of the claim explicit either by citing 1 federal law or the decisions of federal courts, even if the federal basis is “self- evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. 2 Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on 3 federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . . 4 In Johnson, we explained that the petitioner must alert the state court to the fact 5 that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of 6 federal law is. 7 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons 8 v. Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001). 9 On appeal, Petitioner raised the following five grounds for relief: 1) The Second Amended 10 Information was defective on its face for failure to state a public offense; 2) Jury instructions 11 misled the jury into believing it could convict Petitioner of violating § 288(a) when victim was 12 fourteen years old; 3) The evidence was insufficient that victim A.A. was under the age of 13 fourteen when the acts occurred; 4) Petitioner was improperly sentenced as a third striker; and 5) 14 Trial court abused its discretion in admitting evidence of Petitioner’s prior sex offenses. See 15 People v. Williams, 2022 WL 16956802 (Cal. Ct. App. 2022).1 The California Supreme Court 16 denied review on January 25, 2023. Id. In the instant petition, Petitioner raises eleven grounds for 17 relief. However, none of them were raised on appeal. Because Petitioner has not presented his 18 claims for federal relief to the California state courts including the California Supreme Court, the 19 Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); 20 Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The Court cannot consider a petition that is 21 entirely unexhausted. Rose v. Lundy, 455 U.S. 509, 521-22 (1982). 22 ORDER 23 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District 24 Judge to the case. 25
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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 TYRONE WILLIAMS, No. 1:24-cv-00129-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION 14 TO SUMMARILY DISMISS PEOPLE OF THE STATE OF UNEXHAUSTED PETITION 15 CALIFORNIA, [TWENTY-ONE DAY OBJECTION 16 Respondent. DEADLINE] 17 18 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed the instant habeas petition on 20 January 29, 2024, challenging his 2020 conviction in Tulare County Superior Court of 21 committing lewd acts on a child under 14 years of age, sodomy, and rape. Because the petition is 22 unexhausted, the Court will recommend it be DISMISSED. 23 DISCUSSION 24 A. Preliminary Review of Petition 25 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 26 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 27 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 28 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 1 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 2 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 3 2001). 4 B. Exhaustion 5 A petitioner who is in state custody and wishes to collaterally challenge his conviction by 6 a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). 7 The exhaustion doctrine is based on comity to the state court and gives the state court the initial 8 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 9 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 10 A petitioner can satisfy the exhaustion requirement by providing the highest state court 11 with a full and fair opportunity to consider each claim before presenting it to the federal court. 12 Duncan v. Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court 13 was given a full and fair opportunity to hear a claim if the petitioner has presented the highest 14 state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney 15 v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 16 Additionally, the petitioner must have specifically told the state court that he was raising a 17 federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme 18 Court reiterated the rule as follows:
19 In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners “fairly presen[t]” federal claims to the state 20 courts in order to give the State the “opportunity to pass upon and correct alleged violations of the prisoners' federal rights” (some internal quotation marks omitted). 21 If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners 22 are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due 23 process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 24 25 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating:
26 Our rule is that a state prisoner has not “fairly presented” (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those 27 claims were based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held 28 that the petitioner must make the federal basis of the claim explicit either by citing 1 federal law or the decisions of federal courts, even if the federal basis is “self- evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. 2 Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on 3 federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . . 4 In Johnson, we explained that the petitioner must alert the state court to the fact 5 that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of 6 federal law is. 7 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons 8 v. Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001). 9 On appeal, Petitioner raised the following five grounds for relief: 1) The Second Amended 10 Information was defective on its face for failure to state a public offense; 2) Jury instructions 11 misled the jury into believing it could convict Petitioner of violating § 288(a) when victim was 12 fourteen years old; 3) The evidence was insufficient that victim A.A. was under the age of 13 fourteen when the acts occurred; 4) Petitioner was improperly sentenced as a third striker; and 5) 14 Trial court abused its discretion in admitting evidence of Petitioner’s prior sex offenses. See 15 People v. Williams, 2022 WL 16956802 (Cal. Ct. App. 2022).1 The California Supreme Court 16 denied review on January 25, 2023. Id. In the instant petition, Petitioner raises eleven grounds for 17 relief. However, none of them were raised on appeal. Because Petitioner has not presented his 18 claims for federal relief to the California state courts including the California Supreme Court, the 19 Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); 20 Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The Court cannot consider a petition that is 21 entirely unexhausted. Rose v. Lundy, 455 U.S. 509, 521-22 (1982). 22 ORDER 23 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District 24 Judge to the case. 25
26 1 The Court may take judicial notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal- 27 Obeso, 989 F.2d 331, 333 (9th Cir. 1993). Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir. 1981). The Court 28 hereby takes judicial notice of Petitioner’s state appeal. 1 RECOMMENDATION 2 Accordingly, the Court HEREBY RECOMMENDS that the habeas corpus petition be 3 DISMISSED WITHOUT PREJUDICE for lack of exhaustion. 4 This Findings and Recommendation is submitted to the United States District Court Judge 5 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 6 of the Local Rules of Practice for the United States District Court, Eastern District of California. 7 Within twenty-one (21) days after being served with a copy, Petitioner may file written objections 8 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 9 and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 10 U.S.C. § 636 (b)(1)(C). Failure to file objections within the specified time may waive the right to 11 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12
13 IT IS SO ORDERED. 14 Dated: January 31, 2024 /s/ Sheila K. Oberto . 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28