Rollins v. Superior Court Of Los Angeles

• Decision Date: 23 March 2010
• Docket Number: Case No. CV 08-7300-RSWL (JEM).
• Citation: 706 F.Supp.2d 1008
• Court: U.S. District Court — Central District of California
• Parties: Dennis ROLLINS, Petitioner,v.SUPERIOR COURT OF LOS ANGELES, Respondent.

706 F.Supp.2d 1008

Dennis ROLLINS, Petitioner,v.SUPERIOR COURT OF LOS ANGELES, Respondent.

Case No. CV 08-7300-RSWL (JEM).

United States District Court C.D. California.

March 23, 2010.

Dennis Rollins, Los Angeles, CA, pro se.

David Zarmi, CAAG - Office of the Attorney General, Los Angeles, CA, for Respondent.

ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

RONALD S.W. LEW, Senior District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge. The time for filing Objections to the Report and Recommendation has expired, and no Objections have been filed. The Court concurs with and adopts the findings, conclusions, and recommendations of the Magistrate Judge.

IT IS HEREBY ORDERED that Respondent's Motion to Dismiss be granted and that judgment be entered dismissing this action without prejudice.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JOHN E. McDERMOTT, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Ronald S.W. Lew, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

On November 4, 2008, Dennis Rollins (“Petitioner”), a prisoner in state custody, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”).

On June 10, 2009, the Court dismissed the Petition with leave to amend and ordered Petitioner to file a First Amended Petition (“FAP”). Petitioner filed his FAP on June 26, 2009.

On December 9, 2009, Respondent filed a Motion to Dismiss the FAP on the grounds that all four claims asserted therein are unexhausted. Petitioner did not file an Opposition. The Motion to Dismiss is now ready for decision.

BACKGROUND

On January 27, 2009, in Los Angeles County Superior Court, Petitioner pled guilty to petty theft with a prior (Cal.Penal Code § 666.) Petitioner also admitted that he had been convicted previously of a serious or violent offense (Cal.Penal Code §§ 667(b)-( l ), 1170.12(a)-(d)). Petitioner was sentenced to a term of two years eight months in state prison. (Lodged Doc. 1.) He did not file a direct appeal.

On January 10, 2008, about a year before he was convicted of the current offense, Petitioner filed a first petition for writ of mandate in the California Supreme Court (Lodged Doc. 2), which was transferred to the California Court of Appeal on January 18, 2008, with an order to deny the petition if it was found to be “substantially identical to a prior petition.” (Lodged Doc. 3.) The petition was denied summarily by the California Court of Appeal on February 14, 2008. (Lodged Doc. 4.)

On January 30, 2008, Petitioner filed a second petition for writ of mandate in the California Supreme Court (Lodged Doc. 5), which was transferred on January 31, 2008, to the California Court of Appeal with an order to consider the petition in conjunction with the first petition. (Lodged Doc. 6.) The second petition also was denied summarily by the California Court of Appeal on February 14, 2008. (Lodged Doc. 7.)

On March 4, 2008, Petitioner filed third and fourth petitions for writ of mandate in the California Supreme Court, which were identical to the two earlier petitions. (Lodged Docs. 8 to 10.) The third and fourth petitions were denied summarily on March 19, 2008. (Lodged Doc. 11.)

On November 4, 2008, about three months before he was convicted of the current offense, Petitioner filed his original Petition in this Court, which was dismissed on June 10, 2009, with leave to amend.

After his conviction and sentencing, on June 23, 2009, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal (Lodged Doc. 12), which was denied summarily on July 2, 2009. (Lodged Doc. 13.)

Petitioner filed his FAP in this Court on June 26, 2009.

PETITIONER'S CLAIMS

Ground One: Petitioner's “[s]ubstantial rights” were violated when the trial court denied his motion for a continuance to allow him to represent himself and prepare an affirmative defense. (FAP at 5.)

Ground Two: Petitioner's rights under the Confrontation Clause were violated when the trial court did not allow him to subpoena witnesses on his behalf or cross-examine the police officer who testified against him. (FAP at 5.)

Ground Three: Petitioner's “[s]ubstantial rights” were violated when the trial court denied a motion on January 4, 2008, “without consideration of material facts.” (FAP at 6.)

Ground Four: Petitioner's constitutional rights were violated when the trial court considered a 1993 prior misdemeanor which was “too remote” and was not a prior conviction for the purpose of Cal.Penal Code § 666. (FAP at 6.)

DISCUSSION

I. The Petition Should Be Dismissed for Failure to Exhaust State Remedies

A. The Exhaustion Requirement

As a matter of comity, a federal court will not grant habeas relief to a petitioner held in state custody unless he has exhausted the available state judicial remedies on every ground presented in the petition. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 518-22, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). “[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before these claims are presented to the federal courts.” O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); see also Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004) (to give the State the chance to pass upon and resolve violations of his federal rights, a state prisoner must exhaust his available state remedies before seeking federal habeas relief).

Exhaustion requires that the petitioner's contentions be “fairly presented” to the state courts and disposed of on the merits by the highest court of the state. See James v. Borg, 24 F.3d 20, 24 (9th Cir.) cert. denied, 513 U.S. 935, 115 S.Ct. 333, 130 L.Ed.2d 291 (1994); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir.1979). A claim has not been “fairly presented” unless the prisoner has described in the state court proceedings both the operative facts and the federal legal theory on which the claim is based. Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir.2008); Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir.2005). “[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). Thus, a claim is unexhausted where the petitioner did not fairly present either the factual or the legal basis for the claim to the state's highest court. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).

Petitioner has the burden of demonstrating that he has exhausted available state remedies. See, e.g., Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir.1972); Werts v. Vaughn, 228 F.3d 178, 192 (3rd Cir.2000). For purposes of exhaustion, the petition “must be read in context and understood based on the particular words used.” Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir.2003) ( en banc ); Davis, 511 F.3d at 1009 (citations and quotations omitted).

“The appropriate time to assess whether a prisoner has exhausted his state remedies is when the federal habeas petition is filed, not when it comes on for a hearing in the district court or court of appeals.” Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir.2000) (quoting Brown v. Maass, 11 F.3d 914, 915 (9th Cir.1993)). A petition containing solely unexhausted claims is subject to immediate dismissal. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir.2001) (district court obligated to dismiss petition containing no exhausted claims); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.2006) (“Once a district court determines that a habeas petition contains only unexhausted claims, ... it may simply dismiss the habeas petition for failure to exhaust”).

B. All of Petitioner's Claims Are Unexhausted and the FAP Should Be Dismissed Without Prejudice

Here, Petitioner filed four petitions for writ of mandate with the California Supreme Court. (Lodged Docs. 2, 5, 8, and 10.) The first two, filed on January 10, 2008, and January 30, 2008 (Lodged Docs. 2 and 5), were transferred to the California Court of Appeal with instructions that they be dismissed if found to be repetitious. (Lodged Docs. 3 and 6.) The California Supreme Court did not consider Petitioner's claims on the merits and, therefore, they were never “fairly presented” for purposes of exhaustion.

Although the first petition, filed January 10, 2008, and the third petition, filed March 4, 2008, raised claims similar to those raised in Grounds Two through Four herein, Petitioner did not mention federal law or the United State Constitution. ( See Lodged Docs. 2 and 8.) Instead, Petitioner cited only California law, thus failing to alert the California Supreme Court to the federal nature of his claims. See Gray, 518 U.S. at 162-63, 116 S.Ct. 2074; see also Baldwin, 541 U.S. at 32, 124 S.Ct. 1347.

The second petition, filed January 30, 2008, and the fourth petition, filed March 4, 2008, did not raise any of the claims raised by Petitioner in the FAP. ( See Lodged Docs. 5 and 10.)

Moreover, because all four state petitions were filed before Petitioner was convicted, Petitioner never presented his claims in the context of a convicted criminal defendant challenging a judgment. A pre-conviction or pre-judgment writ of mandate is a disfavored remedy in California, limited only to questions of first impression and general importance, and its denial is discretionary. People v. Medina, 6 Cal.3d 484, 491, 99...