Xiaoye Bai v. Warden of High Desert State Prison

• Court: District Court, C.D. California
• Decided: June 25, 2021
• Docket: 2:21-cv-04939
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 XIAOYE BAI, ) No. 2:21-cv-04939-JGB-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE 13 v. ) WHY THE PETITION ) 14 WARDEN OF HIGH DESERT STATE ) SHOULD NOT BE ) DISMISSED PRISON, et al., ) 15 ) 16 Respondents. ) 17 18 I. 19 INTRODUCTION 20 On June 17, 2021, Petitioner Xiaoye Bai (“Petitioner”), a prisoner at 21 High Desert State Prison, Indian Springs, Nevada (“High Desert”) proceeding 22 pro se, filed a “Petition for Writ of Habeas Corpus” under 28 U.S.C. § 2254, 23 with the caption addressed to the “Southern District of California Los Angeles 24 County, California,” challenging a 2016 conviction in Los Angeles County 25 Superior Court. Dkt. 1 (“Petition” or “Pet.”). This is the second habeas 26 petition Petitioner has filed challenging his 2016 conviction. See Bai v. Warden 27 of Ely State Prison, et al., Case No. 2:18-cv-06486-JGB-JDE (C.D. Cal.) 28 1 (“First Petition”), Dkt. 1.1 The First Petition was dismissed without prejudice 2 on March 28, 2019 for failure to exhaust state remedies. Id., Dkt. 16-17. 3 Under Rule 4 of the Rules Governing Section 2254 Cases in the United 4 States District Courts (“Habeas Rules”), the Court has screened the Petition 5 and finds it suffers from several defects. The Court therefore orders Petitioner 6 to show cause why this action should not be dismissed. 7 II. 8 PROCEDURAL HISTORY 9 In 2012, a jury in Clark County, Nevada convicted Petitioner of 10 conspiracy to commit kidnapping, first degree kidnapping, extortionate 11 collection of a debt, extortion, conspiracy to commit murder, burglary while in 12 possession of a deadly weapon, murder with a deadly weapon, and two counts 13 of attempted murder with a deadly weapon. Nevada v. Bai, Case No. 14 09c259754-2. Pet. at 7 (CM/ECF pagination); Bai v. State of Nevada, et al., 15 Case No. 2:20-cv-02042-KJD-NJK (D. Nev.), Dkt. 17. Judgment was entered 16 on March 13, 2013, which included a sentence of life without the possibility of 17 parole. Id. As noted, Petitioner is currently incarcerated at High Desert, 18 serving his Nevada sentence. Pet. at 2. 19 Meanwhile, in 2015, Petitioner was charged with murder and premeditated attempted murder based on a 2008 incident in San Gabriel, 20 California. Appellate Courts Case Information (“Appellate Courts”) at 21 https://appellatecases.courtinfo.ca.gov. On or about July 11, 2016, a Los 22 Angeles County Superior Court jury found Petitioner guilty of first degree 23 24

25 1 The Court takes judicial notice of the relevant federal and state records available electronically. See United States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 26 2018) (“A court may take judicial notice of undisputed matters of public record, 27 which may include court records available through [the Public Access to Court Electronic Records].”); Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking 28 judicial notice of opinion and briefs filed in another proceeding). 1 murder (count 1) and attempted premeditated murder (count 2). Pet. at 1-2; 2 Appellate Courts. Petitioner was sentenced to life without the possibility of 3 parole, plus 25 years to life on count 1 and life with the possibility of parole, 4 plus 25 years to life on count 2. Id. 5 Petitioner appealed his California state conviction and sentence to the 6 California Court of Appeal. Pet. at 2. On February 7, 2018, the California 7 Court of Appeal affirmed the convictions, but remanded the case to the trial 8 court to consider whether to strike the firearm enhancements due to a recent 9 amendment to the applicable statute. Pet. at 2; Appellate Courts. Petitioner thereafter filed a Petition for Review, which the California Supreme Court 10 denied on April 18, 2018. Appellate Courts. 11 Petitioner filed the First Petition on June 27, 2018 in the United States 12 District Court for the Southern District of California, which transferred the 13 matter to this Court on July 24, 2018. First Petition, Dkt. 1-2. On November 7, 14 2018, Respondent filed a motion to dismiss the First Petition arguing the 15 grounds for relief were unexhausted, which Petitioner did not oppose. Id., Dkt. 16 11. On February 19, 2019, the assigned Magistrate Judge issued a report and 17 recommendation recommending the motion to dismiss be granted and the 18 First Petition be dismissed without prejudice. Id., Dkt. 15. Petitioner did not 19 file a timely objection to the report or seek additional time in which to do so. 20 On March 28, 2019, the Court dismissed the First Petition without prejudice 21 for failure to exhaust state remedies. See id., Dkt. 16-17. Thereafter, Petitioner 22 filed two motions for reconsideration, which were denied. Id., Dkt. 20-23. 23 In 2021, it appears Petitioner collaterally challenged his 2016 conviction 24 in state court by filing one or more habeas petitions in the Los Angeles County 25 Superior Court. See Superior Court of California, County of Los Angeles at 26 www.lacourt.org. It is unclear from the superior court’s docket whether the 27 trial court has ruled on the issue or issues raised therein. 28 1 As noted, Petitioner filed the instant Petition on June 17, 2021, 2 challenging his California state conviction. 3 III. 4 PETITIONER’S CLAIMS 5 As explained further below, Petitioner’s grounds for relief are difficult to 6 decipher. As framed by the Petition, Petitioner alleges the following: 7 1. “Denied rights under Sixth and Fourt[]eenth Amendments [as] I 8 did not receive due process of law or effective assistance of counsel at trial.” 9 Pet. at 7. 10 2. “Denied rights under Sixth and Fourt[]eenth Amendments as I did 11 not receive due process of law or effective assistance of counsel on appeal.” 12 Pet. at 7. 13 IV. 14 DISCUSSION 15 Pursuant to Rule 4 of the Habeas Rules, the Court must review the 16 Petition and, if it plainly appears from the Petition and any attached exhibits 17 that Petitioner is not entitled to relief, the Court must dismiss the Petition. 18 Here, the Petition appears subject to dismissal for at least five reasons: (1) 19 Petitioner has not submitted his Petition on the form habeas petition approved 20 by the Central District of California; (2) Petitioner asserts vague, conclusory 21 claims; (3) Petitioner has not exhausted his state court remedies; and (4) 22 Petitioner has named the wrong respondent. 23 First, the Petition was 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. 1 Second, Petitioner has not clearly set forth the grounds upon which he 2 seeks relief. Habeas Rules 2(c) and 4 require a statement of all grounds for 3 relief and the facts supporting each ground; the petition should state facts that 4 point to a real possibility of constitutional error and show the relationship of 5 the facts to the claim. See Habeas Rule 4, Advisory Committee Notes to 1976 6 Adoption; Mayle v. Felix, 545 U.S. 644, 655 (2005); O’Bremski v. Maass, 915 7 F.2d 418, 420 (9th Cir. 1990) (as amended). Allegations in a petition that are 8 vague, conclusory, palpably incredible, or unsupported by a statement of 9 specific facts, are insufficient to warrant relief, and are subject to summary 10 dismissal. See, e.g., Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); 11 James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). 12 Here, Petitioner asserts two grounds for relief. In Grounds One and 13 Two, Petitioner purports to assert claims based on violations of his Sixth and 14 Fourteenth Amendment rights. In Ground One, Petitioner vaguely refers to 15 “issues about witnesses, failure of [his] counsel to properly object to preserve 16 issues, a failure of [his] counsel to investigate, and failure to offer evidence in 17 support of trial and sentencing.” Pet. at 7. In Ground Two, Petitioner claims 18 that his appellate counsel “did not raise all the available issues and did not 19 properly present the issues that were raised.” Id. However, Petitioner provides 20 no factual support or further explanation as these claims, such as identifying 21 the witnesses at issue, the objections trial counsel failed to make, what 22 additional evidence would have been discovered upon further investigation, 23 what evidence trial counsel failed to present, and the claims and arguments 24 appellate counsel failed to raise. 25 Further, it is unclear whether Petitioner is seeking to pursue claims in 26 addition to Grounds One and Two. Specifically, in response to a question on 27 his habeas petition asking Petitioner to identify “any ground[s] being raised in 28 this petition” that were previously presented to this or any other court in a 1 habeas petition, motion, application, or other post-conviction proceeding, 2 Petitioner initially responded, “N/A,” but then proceeded to list four 3 additional grounds for relief in response to the following-up question asking 4 Petitioner to identify “[t]he proceedings in which these grounds were raised.” 5 Pet. at 5. These grounds for relief appear to correspond with the previously 6 unexhausted claims raised in the First Petition. Compare Pet. at 5 with First 7 Petition, Dkt. 1. However, as Petitioner did not list these additional grounds in 8 response to the question on the Petition asking him to identify “every ground 9 on which” he claims he is being held unlawfully (see Pet. at 7), it is unclear 10 whether Petitioner seeks to pursue these additional claims in the instant 11 Petition. Thus, the Petition falls short of the clarity required to proceed. 12 Third, as previously advised, under 28 U.S.C. § 2254(b)(1), federal 13 habeas relief may not be granted unless Petitioner has exhausted the remedies 14 available in state courts or an exception to the exhaustion requirement applies. 15 Exhaustion requires that the petitioner’s claims be fairly presented to the state 16 courts and be disposed of on the merits by the highest court of the state. James, 17 24 F.3d at 24; Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979); see also 18 Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). A claim has not been 19 fairly presented to a state court unless the petitioner has described both the 20 operative facts and the federal legal theory on which the claim is based. See 21 Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 22 404 U.S. 270, 275-78 (1971); Greenway v. Schriro, 653 F.3d 790, 801 (9th Cir. 23 2011). As a matter of comity, a federal court will not entertain a habeas corpus 24 petition unless the petitioner has exhausted the available state judicial remedies 25 on every ground presented in the petition. See Rose v. Lundy, 455 U.S. 509, 26 518-22 (1982). Petitioner has the burden of demonstrating that he has 27 exhausted his available state remedies. See, e.g., Williams v. Craven, 460 F.2d 28 1253, 1254 (9th Cir. 1972) (per curiam). 1 Here, Petitioner does not indicate whether he exhausted any of the 2 purported grounds for relief. However, based on the federal and state court 3 records available electronically, it appears the Petition is wholly unexhausted. 4 In his Petition for Review with the California Supreme Court, Petitioner raised 5 three claims of error: (1) a due process claim based upon the trial court having 6 ordered Petitioner be restrained during trial; (2) a due process claim based 7 upon a failure to instruct the jury as to certain defense theories; and (3) a claim 8 of prosecutorial misconduct based upon certain comments made by the 9 prosecutor during trial. First Petition, Dkt. 12-2. Even liberally constructing 10 the Petition, none of the purported grounds in the instant Petition were fairly 11 presented to or disposed of by the California Supreme Court in Petitioner’s 12 Petition for Review. Petitioner has not sought any other review in the 13 California Supreme Court. See Appellate Courts. Thus, it appears the Petition 14 is entirely unexhausted, rendering it subject to dismissal. 15 Fourth, Petitioner has not named the proper respondents. The Ninth 16 Circuit 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.”). Under Habeas Rule 2(b), if the petitioner is subject 24 to future custody under the state court judgment being contested, the petitioner 25 must name as respondents both the officer who has current custody of 26 petitioner and the Attorney General of the state where the judgment was 27 entered. In this case, Petitioner is currently serving his Nevada state sentence 28 and has not yet begun to serve his California state sentence. See Pet. at 2; First 1 Petition, Dkt. 11 at 1 n.1. Thus, Petitioner must name both the warden of High 2 Desert, where he is currently incarcerated, and the California Attorney 3 General, not the State of California as he has done here. 4 V. 5 ORDER 6 For the foregoing reasons, the Petition is subject to dismissal. Petitioner 7 is ORDERED TO SHOW CAUSE, in writing, by no later than thirty (30) 8 days from the date of this Order, why this action should not be dismissed 9 under Habeas Rule 4 for the reasons stated above. To the extent Petitioner 10 contends he has exhausted his state court remedies, Petitioner is directed to 11 provide information regarding his efforts to exhaust his claims in the state 12 courts, and attach copies of any documents establishing that his claims are 13 indeed exhausted. 14 Alternatively, Petitioner may file an amended petition within thirty (30) 15 days of the date of this Order to attempt to cure the above-referenced defects. 16 The Clerk is directed to send Petitioner a blank copy of the Central District 17 habeas petition form for this purpose. The amended petition should reflect the 18 same case number, be clearly labeled “First Amended Petition,” and be filled 19 out completely, including naming the appropriate respondents. In ¶ 8 of the 20 First Amended Petition, Petitioner should specify separately and concisely 21 each federal constitutional claim that he seeks to raise and answer all of the 22 questions pertaining to each such claim. If Petitioner contends that he 23 exhausted his state remedies, he should list such filings in ¶¶ 4-6 of the habeas 24 petition form. Petitioner should specify all of the grounds raised in such filings, 25 along with the case number, the date of decision, and the result. 26 Petitioner is cautioned that a failure to respond timely in compliance 27 with this Order will result in this action being dismissed for the foregoing 28 1 ||reasons, for failure to prosecute, and for failure to comply with a Court order. 2 ||See Fed. R. Civ. P. 41(b). 3 A || Dated: June 25, 2021 5 Lia Ml AG 6 JOHN D. EARLY 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28