1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GARY PAUL SMITH, No. 1:20-cv-00626-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT

TO ASSIGN DISTRICT JUDGE

13 v.

FINDINGS AND RECOMMENDATION

14 TO SUMMARILY DISMISS

WARDEN KOENIG, UNEXHAUSTED PETITION

15 Respondent. [TWENTY-ONE DAY OBJECTION 16 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 May 1, 2020, challenging his 2002 conviction in Fresno County Superior Court for robbery. 21 Because the petition is unexhausted, the Court will recommend it be DISMISSED. 22 DISCUSSION 23 A. Preliminary Review of Petition 24 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 25 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 26 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 27 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 28 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 1 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2 2001). 3 B. Exhaustion 4 A petitioner who is in state custody and wishes to collaterally challenge his conviction by 5 a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). 6 The exhaustion doctrine is based on comity to the state court and gives the state court the initial 7 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 8 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 9 A petitioner can satisfy the exhaustion requirement by providing the highest state court 10 with a full and fair opportunity to consider each claim before presenting it to the federal court. 11 Duncan v. Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court 12 was given a full and fair opportunity to hear a claim if the petitioner has presented the highest 13 state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney 14 v. Tamayo-Reyes, 504 U.S. 1 (1992) (factual basis). 15 Additionally, the petitioner must have specifically told the state court that he was raising a 16 federal constitutional claim. Duncan, 513 U.S. at 365-66. In Duncan, the United States Supreme 17 Court reiterated the rule as follows:

18 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 courts 19 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). If state 20 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 are asserting 21 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 process of law 22 guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 23 24 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating:

25 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 26 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 27 that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is “self- 28 evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. 1 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 2 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); . . . . 3 In Johnson, we explained that the petitioner must alert the state court to the fact that 4 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 federal 5 law is. 6 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000) (italics added), as amended by Lyons 7 v. Crawford, 247 F.3d 904, 904-5 (9th Cir. 2001). 8 Petitioner indicates he has not exhausted his claims. (Doc. 1 at 5.) He states he has 9 presented petitions to the California Court of Appeal and California Supreme Court; however, he 10 states those petitions were dismissed on procedural grounds. (Doc. 1 at 7.) A claim denied by the 11 state's highest court as procedurally deficient, either explicitly or by citation of authority, does not 12 exhaust the claim. Harris v. Superior Court of State of Cal., Los Angeles County, 500 F.2d 1124 13 (9th Cir. 1974) (en banc). According to the documents attached by Petitioner, his petitions to the 14 California Supreme Court and California Court of Appeal were denied with citation to People v. 15 Duvall, 9 Cal.4th 464, 474 (1995), for failure to include copies of reasonably available 16 documentary evidence or papers, and with citation to In re Swain, 34 Cal.2d 300, 304 (1949) for 17 failure to allege sufficient facts with particularity. State remedies remain available because the 18 deficiencies identified by the state courts can be cured. Harris, 500 F.2d at 1126. 19 Because the petition is unexhausted, the Court must recommend its dismissal. Raspberry 20 v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 21 2001); 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 RECOMMENDATION 26 Based on the foregoing, the Court HEREBY RECOMMENDS that the habeas corpus 27 petition be DISMISSED WITHOUT PREJUDICE for lack of exhaustion. 28 This Findings and Recommendation is submitted to the United States District Court Judge 1 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 2 of the Local Rules of Practice for the United States District Court, Eastern District of California. 3 Within twenty-one (21) days after being served with a copy, Petitioner may file written objections 4 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 5 and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 6 U.S.C. § 636 (b)(1)(C). Failure to file objections within the specified time may waive the right to 7 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 8

IT IS SO ORDERED.

9

Sheila K. Oberto 10 Dated: May 8, 2020 /s/ .

UNITED STATES MAGISTRATE JUDGE

11

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