Opinion
3:23-cv-01561-WQH-AHG
07-31-2024
NAKUNTA SANCHEZ, Petitioner, v. KELLY MARTINEZ, et al., Respondents.
REPORT AND RECOMMENDATION REGARDING PETITIONER'S MOTION TO STAY AND RESPONDENTS' MOTION TO DISMISS [ECF NOS. 4, 12]
Honorable Allison H. Goddard United States Magistrate Judge
Before the Court are two motions: Petitioner Nakunta Sanchez's (“Petitioner”) Motion to Stay (ECF No. 4), and Respondents Kelly Martinez and the Attorney General of California's (collectively, “Respondents”) Motion to Dismiss (ECF No. 12). The Court will address each in turn.
I. PETITIONER'S MOTION TO STAY (ECF No. 4)
A. Background
On August 23, 2023, Petitioner, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 along with a motion to proceed in forma pauperis. ECF Nos. 1, 2. In an Order issued on September 18, 2023, the Court granted Petitioner's motion to proceed in forma pauperis and notified Petitioner that the Petition as currently drafted was subject to dismissal for failure to allege exhaustion of state court remedies. ECF No. 3. The Court instructed Petitioner that to avoid a future dismissal for presenting a petition with only unexhausted claims, Petitioner must notify the Court of his choice to either: (1) demonstrate exhaustion, (2) voluntarily dismiss the petition, or (3) file a motion to stay the federal proceedings. Id.
On September 25, 2023, Petitioner filed a motion to stay, stating in relevant part: “I write today to notify the Court that I wish to stay federal proceedings until state remedies are exhausted. Rhines v. Weber []. I will be filing the state proceedings as soon as possible.” ECF No. 4 at 1. On October 30, 2023, Respondents filed a “statement of no opposition to [Petitioner's] motion for stay.” ECF No. 6. On November 22, 2023, Petitioner filed his reply and applied the Rhines factors, arguing that his claim was meritorious, he had diligently pursued the claim, and good cause existed for the stay. ECF No. 8.
On December 5, 2024, Petitioner filed a notice stating that “I write today to withdraw my Rhines stay requests My withdrawal is based on the fact that the California Supreme Court denied my state habeas corpus writ on 11/15/23 thus fulfilling the exhaustion requirement.” ECF No. 9; see also In re Sanchez, No. S282243, 2023 Cal. LEXIS 6504, at *1 (Nov. 15, 2023) (“The petition for writ of habeas corpus is denied.”). On December 21, 2024, Respondents filed a non-opposition to Petitioner's assertion of exhaustion, stating that Petitioner's “state habeas corpus petition fairly presented his equal protection-claim [to the California Supreme Court]. The State does not oppose a finding of exhaustion.” ECF No. 12 at 2.
B. Legal Standard
Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a petitioner has exhausted the remedies available in state court. This exhaustion requirement is “grounded in principles of comity” as it gives states “the first opportunity to address and correct alleged violations of state prisoner's federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991); see Stull v. Andes, No. 23-cv-04756-JST, 2024 WL 3447514, at * (N.D. Cal. July 17, 2024) (“The state's highest court must be alerted to the fact that the prisoners are asserting claims under the United States Constitution, [] and must be given an opportunity to rule on the claims even if review is discretionary[]”) (internal citations and quotation marks omitted). “If the denial of the habeas corpus petition includes a citation of an authority which indicates that the petition was procedurally deficient or if the California Supreme Court so states explicitly, then the available state remedies have not been exhausted as the California Supreme Court has not been given the required fair opportunity to correct the constitutional violation.” Harris v. Sup. Ct., 500 F.2d 1124, 1128 (9th Cir. 1974) (en banc).
“Exhaustion requires that the petitioner's contentions were fairly presented to the state courts [] and disposed of on the merits by the highest court of the state [].” Conley v. Shinn, No. 22cv985-PHX-SRB-DMF, 2022 WL 18215831, at *3 (D. Ariz. Sept. 27, 2022) (citing Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011) and Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002)). To fairly present his claims, a petitioner must describe both the operative facts and the federal legal theory on which the claim is based. See Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (“[A] claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of facts which entitle the petitioner to relief.”); see also Arrendondo v. Neven, 763 F.3d 1122, 1138 (9th Cir. 2014).
A court may stay an unexhausted petition in “limited circumstances,” to allow a petitioner to present unexhausted claims to the state court without losing his right to federal habeas review due to the relevant one-year statute of limitations. Rhines v. Weber, 544 U.S. 269, 273-75 (2005); Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding that district courts have authority to stay and hold in abeyance both mixed petitions and “fully unexhausted petitions under the circumstances set forth in Rhines”); see Hunter v. Baca, No. 18cv166-HDM-CLB, 2022 U.S. Dist. LEXIS 122639, at *2-*3 (D. Nev. July 12, 2022). Under the Rhines test, a district court may stay an unexhausted petition if: “(1) the petitioner has ‘good cause' for his failure to exhaust his claims in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that the petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278).
C. Discussion
Here, though Petitioner initially sought a stay of his case, he presently seeks to withdraw his stay request because he “fulfill[ed] the exhaustion requirement.” ECF No. 9. The Court will examine the ruling of the California Supreme Court to determine whether Petitioner indeed exhausted his claims, before determining whether a stay is warranted.
In its summary denial of the petition, the California Supreme Court cited Duvall, Dexter, and Swain:
The petition for writ of habeas corpus is denied. (See People v. Duvall [] (a petition for writ of habeas corpus must include copies of reasonably available documentary evidence); In re Dexter [] (a habeas corpus petitioner must exhaust available administrative remedies); In re Swain [] (a petition for writ of habeas corpus must allege sufficient facts with particularity).In re Sanchez, 2023 Cal. LEXIS 6504, at *1 (brackets in original replaced with parentheses).
It is unclear from the California Supreme Court's summary denial whether the citation to Duvall was with regard to providing documents to support his claim for relief, or providing documents supporting exhaustion of administrative remedies. Compare ECF No. 12-5 at 6 (petition to California Supreme Court, which provides instructions for petitioners to “explain what administrative review you sought... [and] attach documents that show you have exhausted your administrative remedies. See People v. Duvall”) with Duvall, 9 Cal.4th at 474 (failure to “include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations”). The Court's analysis remains the same, however, in both instances.
A denial of a habeas petition with a citation to Duvall indicates that a petitioner has failed to state his claim with sufficient particularity for the state court to examine the merits of the claim, or has failed to “include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations.” People v. Duvall, 9 Cal.4th 464, 474 (1995). A citation to Swain indicates that a petitioner has failed to “allege with particularity the facts upon which he would have a final judgment overturned.” In re Swain, 34 Cal. 2d 300, 304 (1949). When the California Supreme Court denies a petition for writ of habeas corpus with citations to both Duvall and Swain, the decision is “in effect, the grant of a demurrer, i.e., a holding that [the petitioner] ha[s] not pled facts with sufficient particularity.” Curiel v. Miller, 830 F.3d 864, 869 (9th Cir. 2016) (alterations in original) (elaborating on the meaning of the Duvall and Swain citations in California Supreme Court orders). “These are defects that can be cured in a renewed state petition[, and] [s]tate judicial remedies are not exhausted in such a case.” McCarthy v. Frauenheim, No. 16cv6820-HSG-PR, 2017 WL 5972696, at *3 (N.D. Cal. Dec. 1, 2017); see Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986) (“Swain is cited by the California Supreme Court to indicate that claims have not been alleged with sufficient particularity. That deficiency, when it exists, can be cured in a renewed petition”).
Because the California Supreme Court's denial of the petition “with citations to Duvall and Swain left state remedies available, the Court must independently review the state petition to decide if Petitioner ‘fairly presented' his claims to the state court.” Underdahl v. Hill, No. 20cv1292-AJB-BLM, 2020 WL 7385846, at *7 (S.D. Cal. Dec. 16, 2020); see Kim, 799 F.2d at 1320 (“The state courts, by denying a writ for lack of particularity when the claims are alleged with as much particularity as is practicable, cannot forever preclude the petitioner from reaching federal court. Such a result would defeat the purposes of section 2254. It is therefore incumbent upon us, in determining whether the federal standard of ‘fair presentation' of a claim to the state courts has been met, independently to examine [Petitioner's] petition to the California Supreme Court. The mere citation of In re Swain does not preclude such review”). Here, the Court has reviewed Petitioner's state habeas petition and agrees that his equal protection claim was described in only a cursory fashion. “His sparse presentation of argument with no evidentiary support left the state courts to guess at the meaning of petitioner's claim []. On this record, the state courts reasonably determined that [the claim] was not fairly presented.” McCarthy, 2017 WL 5972696, at *4; see ECF No. 12-5 at 4 (Petitioner's state petition, with only a few sentences of argument, leaving blank the number of months he would serve in county jail versus state prison: “with no strikes I stay in county jail and must do months, with prior strike state prison is required and I would do months”).
In Dexter, the California Supreme Court held that the court will not afford a prisoner judicial relief unless he has first exhausted available administrative remedies. In re Dexter, 25 Cal.3d 921, 925-926 (1979). Here, the California Supreme Court's citation to Dexter in its summary denial “signifies that the court did not reach the merits of Petitioner's claims because Petitioner failed to exhaust his available administrative remedies.” Blackgold v. Madden, No. 23cv13-CAB-BGS, 2023 WL 8171595, at *10 (S.D. Cal. Nov. 24, 2023) (dismissing claims as unexhausted due to Dexter citation and collecting cases); see, e.g., Turner v. Dir. of CDC, No. 14cv392-LJO-JLT, 2014 U.S. Dist. LEXIS 126831, at *3 n.2 (E. D. Cal. Sept. 10, 2014) (“for exhaustion purposes, the citation to Dexter alone is sufficient, without the need to review the state petition, to establish that the claims in the first amended petition were never considered on their merits by the state court and, thus were not ‘fairly presented' within the meaning of AEDPA”).
Antiterrorism and Effective Death Penalty Act of 1996.
The exhaustion requirement can be satisfied if the federal claim has been fairly presented to the state courts, or if no state remedy remains available. See Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996); Picard v. Connor, 404 U.S. 270, 275 (1971). Thus, the exhaustion requirement may be technically satisfied notwithstanding a failure to present a claim to the state supreme court. Gray, 518 U.S. at 161; Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001) (“the district court correctly concluded that [the] claims were nonetheless exhausted because ‘a return to state court for exhaustion would be futile.'”). For example, “[a] habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available' to him.” Cassett v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir. 2005); Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) (“A claim that has not been fairly presented may also be deemed technically exhausted if the petitioner has defaulted on the claim in state court and no longer has a remedy in that court.”). However, Petitioner does not meet the standard for technical exhaustion here because, “[a]fter the California Supreme Court rejected the petition for the procedural reason that Petitioner had not first exhausted state administrative remedies [pursuant to Dexter], Petitioner had the ability to exhaust his administrative remedies for his claims and then refile his state habeas petition.” Stull, 2024 WL 3447514, at *4; see also Stamos v. Davey, No. 16-cv-4860-TEH, 2017 WL 412619, at *2 (N.D. Cal. Jan. 31, 2017) (when California Supreme Court cited to Dexter in denial of petition, “Petitioner retained the ability to refile his state habeas petition after exhausting his claims through the administrative procedure”). As such, state remedies are still available to him and the Court finds that Petitioner did not exhaust his state judicial remedies. Cardoza v. Hatton, No. 16-cv-03666-EMC, 2017 WL 1493106, at *3 (N.D. Cal. Apr. 26, 2017) (“In light of the California Supreme Court's denial of the habeas petition with a citation to In re Dexter, and Mr. Cardoza's failure thereafter to exhaust administrative remedies and return to the California Supreme Court, this Court finds that Mr. Cardoza has not exhausted his state judicial remedies for the claim in his federal petition for writ of habeas corpus ... That procedural rejection by the California Supreme Court leads this Court to conclude that Mr. Cardoza has not given the California Supreme Court a fair opportunity to rule on the merits of his claim”).
Though the Court has determined that the petition is not exhausted, the Court notes that Respondents did not oppose Petitioner's assertion of exhaustion and instead affirmatively concluded that “[Petitioner]'s state habeas corpus petition exhausted his equal-protection claim[.]” ECF No. 12-1 at 7; see also ECF No. 12 at 2 (“[Petitioner]'s state habeas corpus petition fairly presented his equal protection claim”). By stating as such, Respondents expressly waived the exhaustion requirement. 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.”). AEDPA “does not require ‘magic words' in order for a state to expressly waive exhaustion,” but the “touchstone for determining whether a waiver is express is the clarity of the intent to waive.” D'Ambrosio v. Bagley, 527 F.3d 489, 497 (6th Cir. 2008). The Court interprets Respondents' assertion here as a clear intent to waive. Compare ECF No. 12-1 at 7 (“[Petitioner]'s state habeas corpus petition exhausted his equal-protection claim[.]”) with Mosley v. Braughman, No. CV-17-9149-PA-KS, 2018 WL 6112746, at *5 (C.D. Cal. Oct 16, 2018) (“This language clearly expressed the intent to waive the exhaustion requirement[] ... ‘As currently alleged, the claims set forth in the Petition appear to be exhausted.'”); see also Clay v. Madden, No. 17cv3081-MWF-KES, 2020 WL 1696236, at *51 (C.D. Cal. Mar. 6, 2020) (finding that the assertion by Respondent that “[t]he claims set forth in the Petition appear to be exhausted,” was an express waiver); accord Sharrieff v. Cathel, 574 F.3d 225, 229 (3d Cir. 2009) (holding that an assertion in the government's Answer that petitioner “appear[ed] to have exhausted” his claim was an express waiver); Carty v. Thaler, 583 F.3d 244, 257 (5th Cir. 2009) (holding that the government's assertion that “[a]ll but one of Carty's claims appear to be exhausted,” constituted an express waiver of the exhaustion defense to all but one claim because the “state clearly considered exhaustion as a defense and chose not to exercise that defense”). Here, Respondents' express waiver is not rendered invalid by the possibility that Respondents' position on exhaustion is incorrect. See Eichwedel v. Chandler, 696 F.3d 660, 671 (7th Cir. 2012) (“a State expressly waives exhaustion for purposes of § 2254(b)(3) where, as here, it concedes clearly and expressly that the claim has been exhausted, regardless of whether that concession is correct.”).
D. Summary
In light of Petitioner's withdrawal of his request for a Rhines stay and Respondents' waiver of the exhaustion requirement, the Court RECOMMENDS that Petitioner's Motion to Stay be DENIED AS MOOT. ECF No. 4.
See Estrada v. Biter, No. 14cv679-AWI-GSA-HC, 2014 WL 6610481, at *3 (E.D. Cal. Nov. 19, 2014) (denying petitioner's motion for Rhines stay as moot, explaining that, “before the Court ruled on the motion for a stay, Petitioner filed a motion to lift the stay, in which he indicated that he has exhausted his state remedies, and attached a copy of the California Supreme Court's [] order denying his petition for writ of habeas corpus”); see also Estrada v. Biter, No. 14cv679-AWI-GSA-HC, Petitioner's Motion to Lift Stay, ECF No. 15 (E.D. Cal. Aug. 28, 2014) (attached copy of California Supreme Court summary denial with citations to In re Clark and In re Miller).
II. RESPONDENTS' MOTION TO DISMISS (ECF No. 12)
A. Background
On August 23, 2023, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, alleging that the denial of his good time credit is a violation of the Equal Protection Clause. ECF No. 1 at 6. Concurrently with Respondents' Notice of NonOpposition regarding Petitioner's assertion of exhaustion (see ECF No. 10), on December 21, 2023, Respondents filed a Motion to Dismiss. ECF Nos. 12, 12-1. In the motion, Respondents argue that the Petition (ECF No. 1) should be dismissed because Petitioner procedurally defaulted his claim, and also because Petitioner failed to plead a required element of his claim. ECF No. 12-1 at 7-13. Further, Respondents argue that Petitioner should not be permitted to amend his petition. Id. at 13.
B. Petitioner's Failure to File an Opposition
Pursuant to this Court's briefing schedule, Petitioner's opposition was due on or before February 5, 2024. ECF No. 13. To date, Petitioner has not filed an opposition or notice of non-opposition. This district's Civil Local Rule 7.1 provides “[i]f an opposing party fails to file [an opposition] in the manner required by Civil Local Rule 7.1.e.2, that failure may constitute a consent to the granting of a motion or other request for ruling by the court.” CivLR 7.1(f)(3)(c). Since Petitioner has failed to oppose Respondents' motion to dismiss, on this ground alone, the Court could grant the motion. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (affirming dismissal when pro se inmate failed to oppose a motion to dismiss, based on a local rule providing that “[t]he failure of the opposing party to file a memorandum of points and authorities in opposition to any motion shall constitute consent to the granting of the motion”); Butler v. Manning, No. 22cv690-MMA-DEB, 2023 WL 2637386, at *1 (S.D. Cal. Mar. 24, 2023) (granting motion to dismiss because pro se inmate failed to oppose, explaining that “the Court has the option of granting Defendants' motion to dismiss based upon Plaintiff's failure to respond [per Civil Local Rule 7.1(e)(2)] and chooses to do so here”).
Although the Court may grant Respondents' motion as unopposed, upon due consideration and in light of Petitioner's pro se status, the Court will examine the merits. See, e.g., Orcasitas v. Ko, No. 21cv143-MMA-RBB, 2021 WL 4942681, at *2 n.3 (S.D. Cal. Oct. 22, 2021) (noting that the court could have granted defendant's motion to dismiss because the pro se inmate failed to file an opposition, but opted to address the merits of the motion).
C. Discussion
The Court will address Respondents' arguments regarding failure to state a claim and procedural default. The Court will address each in turn.
1. Failure to State a Claim
Respondents argue that Petitioner failed to plead a required element of his claim, thus requiring dismissal. Though Respondents concede that “[Petitioner] argues that he is legally entitled to a good-conduct credit,” Respondents argue that Petitioner does not specify any facts to prove “that his own conduct in jail was sufficiently free of discipline to receive this type of credit.” ECF No. 12-1 at 10. Respondents further argue that the California Supreme Court already weighed in on this issue with its citations to Duvall and Swain, dismissing the petition for failure to state a claim. ECF No. 12-1 at 11-12.
a. Legal Standard
The Supreme Court has stated that a Rule 12(b)(6) motion is an inappropriate motion to file in a habeas corpus proceeding. Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 269 n.14 (1978). “Although the basis of Respondent[s'] motion [to dismiss for failure to state a claim upon which relief can be granted] is inappropriate in a habeas action, the Court can address Respondent[s'] motion under Rule 4 of the Rules Governing Section 2254 Cases. Therefore, the Court will construe Respondent[s'] motion as a motion to dismiss for failure to state a cognizable federal claim.” Vargas v. Adler, No. 08cv1592-YNO-DLB-HC, 2010 WL 703211, at *2 (E.D. Cal. Feb. 25, 2010).
Rule 4 of the Rules Governing Section 2254 Cases requires a district court to sua sponte dismiss a petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court[.]” RULE 4, RULES GOVERNING SECTION 2254 CASES; see also Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983). Motions to dismiss a habeas petition have been construed by the Ninth Circuit as a request for the court to dismiss under Rule 4. See O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); Bailey v. St. Andre, No. 23cv1228-TLN-JDP-HC, 2024 WL 3204145, at *1 (E.D. Cal. June 27, 2024) (ruling on motion to dismiss, explaining that “[u]nder Rule 4, I evaluate whether it ‘plainly appears' that the petitioner is not entitled to relief and, if so, recommend dismissal”).
In ruling on a motion to dismiss, the court “must accept factual allegations in the [petition] as true and construe the pleadings in the light most favorable to the non-moving party.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011); Chippolla v. Valdez, No. 06cv490-S-EJL, 2008 WL 656033, at *3 (D. Idaho Mar. 6, 2008) (applying standard in habeas case). However, a petition for writ of habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (per curium); Miller v. Pfeiffer, No. 22cv1270-WBS-DB, 2024 WL 556995, at *2 (E.D. Cal. Feb. 12, 2024).
b. Analysis
Here, Petitioner thoroughly explains his equal protection claim. See ECF No. 1. Petitioner explains that those with no strikes are placed in county jail, while those with prior strikes are placed in state prisons. Petitioner contends that those serving their sentences in county jails are treated differently than those serving their sentences in state prisons, because the state prisoners are entitled to earn additional credit for time served, shortening their prison-time, while the county prisoners are not afforded the same opportunities. Id. at 7-8; see id. at 9 (a county prisoner with no prior strikes sentenced to four years would serve two years, while a state prisoner with a prior strike sentenced to four years would serve sixteen months). Petitioner asserts that “CDCR has authority to award credits earned for good behavior and other programs ... I would be eligible for the credit [] if sent to prison.” Id. at 8-9. Petitioner asserts that the law does not pass the rational basis test because there is no “rational relationship to a conceivable state interest” by which to overcome his equal protection claim. Id. at 10-11.
Respondents argue that, because Petitioner did not specifically state that he “complied with “regulations and local rules” and “performed duties assigned on a regular and satisfactory basis,” his equal protection claim fails to state a claim. ECF No. 12-1 at 10. Respondents support their contention that Petitioner's claim that he is eligible for the credits was not specific enough by citing cases where purportedly notice pleading was insufficient. Id. (citing Blackledge, Davis, O'Bremski, White, and Gutierrez). However, these cases are unpersuasive for the point Respondents endeavor to make. Blackledge v. Allison, 431 U.S. 63, 75, 75 n.7 (1977) (explaining that “the petition is expected to state facts that point to a real possibility of constitutional error,” and noting that the allegations were not vague and conclusory); Davis v. Woodford, 333 F.3d 982, 1003 (9th Cir. 2003) (conclusory allegations about what a witness may offer when requesting an evidentiary hearing are insufficient); O'Bremski, 915 F.2d at 422-23 (petition only addressed release date when law pertained to parole hearing date, so court declined to offer an advisory opinion on what petitioner could have argued); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (does not address notice pleading, and addresses the appropriateness of motions to dismiss in habeas cases and petitioner's failure to argue cause and prejudice to excuse procedural default); Gutierrez, 695 F.2d at 1197-99 (petitioner was not in imminent and immediate danger because he stated in his petition that he was armed and able to defend himself). Respondents do not explain why Petitioner's statement that “I would be eligible for the credit [] if sent to prison,” (ECF No. 1 at 8-9), fails to show a real possibility of constitutional error, and the Court cannot conclude that it “plainly appears” that Petitioner is not entitled to relief, (RULE 4, RULES GOVERNING SECTION 2254 CASES). Cf. Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013) (courts liberally construe filings by pro se inmate litigants); Alvarez v. Hill, 518 F.3d 1152, 1158 (9th Cir. 2008) (because a prisoner was proceeding pro se, “the district court was required to afford him the benefit of any doubt in ascertaining what claims he raised in his complaint”) (internal quotation marks omitted). As such, the Court finds Respondents' arguments premature. Cf. Alcaras v. Thompson, No. 21cv1767-KJM-DMC-P, 2022 WL 3030512, at *2 (E.D. Cal. Aug. 1, 2022) (“Whether Petitioner has participated in any activities which could entitle him to earned-time credit, .. are exactly the types of factual questions that extend beyond statutory construction and require a developed record for this Court to consider”).
Respondents' argument that the California Supreme Court's citations to Duvall and Swain require dismissal here is also not persuasive. First, as noted above, it is unclear from the California Supreme Court's summary denial whether the citation to Duvall was with regard to providing documents to support his claim for relief, or providing documents supporting exhaustion of administrative remedies. Compare ECF No. 12-5 at 6 (petition to California Supreme Court, which provides instructions for petitioners to “explain what administrative review you sought... [and] attach documents that show you have exhausted your administrative remedies. See People v. Duvall”) with Duvall, 9 Cal.4th at 474 (failure to “include copies of reasonably available documentary evidence”). Thus, the Court is not persuaded that the citation to Duvall is reason enough for dismissal for failure to state a claim here. Second, the Court notes that the California Supreme Court, as confirmed by its citation to Swain, addressed Petitioner's state petition, which contained only one paragraph of cursory equal protection allegations. In contrast, in the instant federal petition, Petitioner bolsters his equal protection allegations with five pages of explanation. Compare ECF No. 12-5 at 4 with ECF No. 1 at 7-11. The Court is not required, and is not persuaded by Respondents to, dismiss the instant petition solely because of the previous Swain citation.
“The Ninth Circuit treats a citation to In re Swain as standing for a denial on procedural grounds which can be cured in a renewed state petition . . . [showing that] [s]tate judicial remedies therefore are not exhausted.” Thomas v. Brown, No. C-05-2544-JSW-PR, 2007 WL 781956, at *3 (N.D. Cal. Mar. 13, 2007) (citing Kim, 799 F.2d at 1319). Respondents provide no authority for their proposition that Swain requires dismissal for failure to state a claim in lieu of failure to exhaust.
Thus, the Court RECOMMENDS that Respondents' Motion to Dismiss be DENIED as to Respondents' assertion that Petitioner failed to state a claim.
2. Procedural Default
“There are two exhaustion principles in this case; although it is the second one that requires dismissal of the petition, both kinds of exhaustion must be mentioned.” Cardoza, 2017 WL 1493106, at *2. First, there is the federal habeas requirement of exhaustion of state judicial remedies, explained above with regard to Petitioner's Motion to Stay. Second, there is the exhaustion of administrative remedies, which will be discussed here. Purposes of requiring administrative exhaustion include: affording a correctional facility the chance to correct its own error, bolstering administrative autonomy by affording deference to an agency's exercise of its own discretionary power, producing a useful record for judicial consideration, and encouraging settlement. See Wright v. State of Cal., 122 Cal.App.4th 659, 666 (2004). California requires that each county jail provide their inmates with an administrative grievance procedure. CAL. CODE REGS. tit. 15, § 1045(b)(14). As such, each county jail is required to give “all incarcerated persons [] the opportunity and ability to submit and appeal grievances relating to any conditions of confinement, including but not limited to: medical care; classification actions; disciplinary actions; program participation; telephone, mail, and visiting procedures; and food, clothing, and bedding.” CAL. CODE REGS. tit. 15, § 1073(a). In order to exhaust available administrative remedies within this system, a prisoner at South Bay Detention Facility (or any other San Diego County jail) must proceed through three formal levels of appeal-first level J-22 grievance to a deputy, second level appeal to grievance review officer, and third level appeal to Facility Commander, who renders the final decision. Grievance Procedure, SAN DIEGO CNTY. SHERIFF'S DEP'T OF DET. SERV. BUREAU: MANUAL OF POL'Y & PROC., at 5 (Nov. 7, 2023),https://perma.cc/KS58-PD9U. A California prisoner-petitioner must exhaust these administrative remedies before he files a habeas petition in a California state court. See In re Dexter, 25 Cal.3d at 925; see also In re Serna, 76 Cal.App.3d 1010, 1014 (1978) (“The well established doctrine of exhaustion of administrative remedies applies to grievances lodged by prisoners [], even when the grievances involve an alleged constitutional violation [].”) (internal citations omitted); cf. Serger v. Adams, 2012 U.S. Dist. LEXIS 141073, at *2 (E.D. Cal. Sept. 28, 2012) (applying administrative exhaustion requirement to prisoner in county jail).
See CAL. CoDE REGS. tit. 15, § 1006 (“‘Local detention facility' means any city, county, city and county, or regional jail, camp, court holding facility, or other correctional facility, whether publicly or privately operated, used for confinement of adults ...”); id. (“‘Type III facility' means a local detention facility used only for the detention of convicted and sentenced persons.”); id. (“‘Jail' [] means a Type II or III facility”).
The Court notes that the policy provided by Respondents as an exhibit was last updated on June 1, 2023. See ECF No. 12-7.
Respondents contend that Petitioner procedurally defaulted under Dexter because he failed to exhaust the jail's administrative procedures before seeking judicial relief. ECF No. 12-1 at 1; see In re Dexter, 25 Cal.3d at 921 (holding that the court will not afford a prisoner judicial relief unless he has first exhausted available administrative remedies). Here, Petitioner's state petition left blank the portion regarding administrative review. See ECF No. 12-5 at 6 (leaving blank question 11a: “Explain what administrative review you sought or explain why you did not seek such review”); id. (not including any documentation in response to question 11b: “Attach documents that that show you have exhausted your administrative remedies”).
a. Legal Standard
As a general rule, "[a] federal habeas court will not review a claim rejected by a state court ‘if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'” Walker v. Martin, 562 U.S. 307, 315 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 55 (2009)). It follows that the procedural default doctrine “‘bar[s] federal habeas [review] when a state court declined to address a prisoner's federal claims because the prisoner has failed to meet a state procedural requirement.'” Calderon v. U.S. Dist. Ct., 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman, 501 U.S. at 729); Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994) (“the procedural default doctrine is a specific application of the general adequate and independent state grounds doctrine”).
Because procedural default is an affirmative defense, a respondent must first have adequately pled the existence of an independent and adequate state procedural ground. Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). A state procedural rule is independent if it is not interwoven with federal law. LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). A state procedural rule is adequate if it is clear, consistently applied, and well established at the time of the default. Calderon, 96 F.3d at 1129; see Greenway v. Schriro, 653 F.3d 790, 797-98 (9th Cir. 2011). A state procedural rule is “consistently applied and well-established if the state courts follow it in the ‘vast majority of cases.'” Scott v. Schriro, 567 F.3d 573, 580 (9th Cir. 2009) (citing Dugger v. Adams, 489 U.S. 401, 411 n.6 (1989)).
“Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner.” Bennett, 322 F.3d at 586. A petitioner can overcome a procedural default by demonstrating cause and prejudice, i.e., “cause for the default and actual prejudice because of the alleged violation of federal law or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Blackgold, 2023 WL 8171595, at *7 (citing Coleman, 501 U.S. at 750).
b. Analysis
Many courts have concluded that California's administrative exhaustion requirement is an is an independent and adequate state procedural bar. See, e.g., Turner, 2014 U.S. Dist. LEXIS 126831, at *10-*12 (in depth explanation about the administrative exhaustion requirement being independent and adequate). Specifically, California's “administrative exhaustion rule is based solely on state law and is therefore independent of federal law.” Wheeler v. Arnold, No. 15cv1383-MCE-DB-P, 2017 WL 416142, at *2-*3 (E.D. Cal. Jan. 30, 2017); Patterson v. Mendoza-Powers, No. 1:07-CV-00686-OWW-TAG-HC, 2009 WL 277502, at *2 (E.D. Cal. Feb. 5, 2009). California's “administrative exhaustion rule has also been firmly established and has been regularly followed since 1941 and is therefore adequate to support a judgment.” Blackgold, 2023 WL 8171595, at *8 (citing Abelleira v. District Ct. of Appeal, 17 Cal. 2d 280, 292 (1941)); see also Drake v. Adams, No. 07cv577-JKS, 2009 WL 2474826, at *2 (E.D. Cal. Aug. 11, 2009) (“In reviewing California cases in which the issue of exhaustion was decided during the past 10 years, the Court was unable to find a single case in which a California appellate court did not deny a petition for failure to exhaust administrative remedies. Thus, this doctrine appears to be well established and consistently applied.”).
Here, the California Supreme Court cited Dexter as a reason for denying the petition. In re Sanchez, 2023 Cal. LEXIS 6504, at *1 (“The petition for writ of habeas corpus is denied. In re Dexter [] (a habeas corpus petitioner must exhaust available administrative remedies) ...”). Because California's administrative exhaustion rule is independent and adequate, “California district courts have consistentlyheld that when the California Supreme Court denies a petition with a citation to In re Dexter, a federal habeas petition is procedurally barred.” Blackgold, 2023 WL 8171595, at *8 (collecting cases); see, e.g., Wheeler, 2017 WL 416142, at *3 (granting motion to dismiss and finding procedural default when California Supreme Court cited In re Dexter in its summary denial); Thompson v. Macomber, No. 14cv1787-GEB-GGH, 2015 WL 222583, at *3 (E.D. Cal. Jan. 14, 2015) (same); Herrera v. Gipson, No. 12cv2982-TLN-DAD-P, 2014 WL 5463978, at *1 (E.D. Cal. Oct. 24, 2014) (same); Yeh v. Hamilton, No. 13cv00335-AWI-GSA-HC, 2013 WL 3773869, at * 2-3 (E.D. Cal. July 17, 2013) (same). Accordingly, the instant petition is barred by the doctrine of procedural default.
Cases which have found to the contrary are distinguishable. See Vera v. Adams, No. 10-CV-1940-LAB-BLM, 2013 U.S. Dist. LEXIS 125665, at *8 (S.D. Cal. Apr. 29, 2013) (finding that California Supreme Court's citation to Dexter did not support procedural default, when it was unclear from the additional citation to Robbins whether the California Supreme Court was denying the petition as untimely or unexhausted).
Since Petitioner did not file an opposition, he has not alleged any facts to cast doubt on the adequacy or consistent application of California's administrative exhaustion rule. See Bennett, 322 F.3d at 586. Nor has Petitioner asserted that the California Supreme Court's administrative exhaustion rule “discriminates against claims of federal rights.” Walker, 562 U.S. at 321. Nor has Petitioner contended that this Court's “failure to consider his claims for federal habeas relief will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 724; Bennett, 322 F.3d at 580. Finally, “although Petitioner can overcome a procedural default by demonstrating cause for the default and actual prejudice, he has advanced no [] arguments here.” Wheeler, 2017 WL 416142, at *3.
Accordingly, the Court RECOMMENDS that Respondents' Motion to Dismiss be GRANTED, as Petitioner's claim is procedurally defaulted under Dexter. See Carter v. Giurbino, 385 F.3d 1194, 1197 (9th Cir. 2004) (one-sentence summary denial of petition incorporating unelaborated case citation sufficient for procedural default); Bennett, 322 F.3d at 580 (procedural bar still applies even if the state court based its denial on alternative grounds as long as at least one of them was an adequate and independent procedural ground).
D. Summary
For the reasons set forth above, the Court RECOMMENDS that Respondents' Motion to Dismiss be GRANTED IN PART and DENIED IN PART, and that the Petition be DISMISSED. The Court reminds Petitioner that “[a]fter the California Supreme Court rejected the petition for the procedural reason that Petitioner had not first exhausted state administrative remedies [pursuant to Dexter], Petitioner had the ability to exhaust his administrative remedies for his claims and then refile his state habeas petition.” Stull, 2024 WL 3447514, at *4. The Court, however, also reminds Petitioner that, even if he shows that he exhausted his administrative remedies before filing a new federal petition, his new federal petition might be rejected as time-barred. See 28 U.S.C. § 2244(d). As such, should Petitioner decide to refile his state habeas petition to show exhaustion of administrative remedies, Petitioner may file a renewed Motion to Stay.
III. CONCLUSION AND RECOMMENDATION
The Court submits this Report and Recommendation to United States District Judge William Q. Hayes under 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California. In addition, IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation, (2) directing that Petitioner's Motion to Stay be DENIED AS MOOT, (3) directing that Respondents' Motion to Dismiss be GRANTED IN PART and DENIED IN PART, and (4) DISMISSING the Petition.
IT IS HEREBY ORDERED that any party to this action may file written objections with the Court and serve a copy on all parties no later than August 15, 2024 . The document should be captioned “Objections to Report and Recommendation.”
The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's Order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
IT IS SO ORDERED.