Free Motion to Dismiss - District Court of California - California

Case 3:07-cv-05104-PJH

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 JULIE L. GARLAND Senior Assistant Attorney General 4 ANYA M. BINSACCA Supervising Deputy Attorney General 5 ELIZABETH S. KIM, State Bar No. 166599 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 6 San Francisco, CA 94102-7004 Telephone: (415) 703-5715 7 Fax: (415) 703-5843 Email: [email protected] 8 9 Attorneys for Respondent 10 11 12 13 14 15 16 17 18 19 20 21 TO PETITIONER ANTHONY JOHN CLIFFORD, IN PRO PER: PLEASE TAKE NOTICE that pursuant to 28 U.S.C. § 2254 and Rule 4 of the Rules v. B. CURRY, Warden Respondent Judge: The Honorable Phyllis J. Hamilton ANTHONY JOHN CLIFFORD, Petitioner, C07-5104 PJH (PR) NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

22 Governing § 2254 Cases in the United States District Courts, Respondent B. Curry, Warden of 23 Correctional Training Facility, moves the Court for an order dismissing the above-entitled action 24 on the ground that Petitioner failed to exhaust his state court remedies as to all his claims before 25 filing the instant habeas petition. 26 This motion is based on this notice and the motion, the supporting memorandum of points

27 and authorities, the pleadings, the records, and the files in this case. 28 \\\
Notice of Mot. & Mot. to Dismiss Clifford v. Curry C07-5104 PJH (PR)

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PRELIMINARY STATEMENT This is a federal habeas corpus action brought by a California prisoner serving an

3 indeterminate fifteen-year-to-life term for the second-degree murder of his infant son. Petitioner 4 Clifford alleges that the Board of Parole Hearings violated his constitutional rights when it 5 denied him parole at the March 2006 parole consideration hearing. (See Pet.) 6 Respondent moves to dismiss the petition because Petitioner failed to exhaust his state court

7 remedies as to all his claims that are now before this Court. Thus, Petitioner has deprived the 8 state of the full and fair opportunity to resolve all his federal constitutional claims, and 9 consequently, his petition should be dismissed. 10 11 12 13 14 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) states that a habeas ARGUMENT PETITIONER DID NOT EXHAUST STATE COURT REMEDIES AS TO ALL HIS CLAIMS BEFORE FILING THIS FEDERAL HABEAS CORPUS PETITION; THUS, THE PETITION SHOULD BE DISMISSED.

15 corpus petition on behalf of a person in custody pursuant to the judgment of a State court cannot 16 be granted unless the prisoner has exhausted the remedies available in the State courts. 28 17 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (a state inmate must 18 properly exhaust available state court remedies before a federal court may consider granting 19 habeas corpus relief). Usually, the inmate must have fairly presented his claims "to the highest 20 state court with jurisdiction to consider it" to exhaust available procedures, or demonstrate that 21 no state remedies remain available. Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996); see also 22 Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) ("A petitioner must exhaust his state 23 remedies by reaching the point where he has no state remedies available to him at the time he 24 files his federal habeas petition"). In California, the California Supreme Court must be given at 25 least one opportunity to review habeas claims. Larche v. Simons, 53 F.3d 1068, 1071 (9th Cir. 26 1995). 27 Moreover, not only must petitioner present each of his claims to the state's highest court,

28 "the state's highest court must have disposed of each claim on the merits." James v. Borg, 24
Notice of Mot. & Mot. to Dismiss Clifford v. Curry C07-5104 PJH (PR)

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1 F.3d 20, 24 (9th Cir. 1994). An inmate has not fairly presented his federal claims unless he has 2 specifically raised each and every one of his federal issues in the state court proceedings. See 3 Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by, 247 F.3d 904 (9th Cir. 4 2001). The law requiring exhaustion in state courts prior to filing for relief in federal court is 5 primarily grounded in the "respect which the federal courts have for the state judicial processes 6 and upon the administrative necessities of the federal judiciary." Wade v. Mayo, 334 U.S. 672, 7 679 (1948). Comity interests between the federal and state systems allow the state an initial 8 opportunity to determine and correct any violations of a prisoner's federal rights. Picard v. 9 Connor, 404 U.S. 270, 275 (1971). Thus, if one or more claims in the federal petition have not 10 been exhausted, the district court must dismiss the petition. Rose v. Lundy, 455 U.S. 509, 518-19 11 (1982); see also Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (the district court must 12 dismiss the petition immediately if the petition contains unexhausted claims). 13 Here, Petitioner did not present to the California Supreme Court his claims that: (1) "the

14 `minimally necessary' standard has deprived petitioner of his federally protected liberty interest 15 by eviscerating the `some evidence' standard;" and (2) the "post-trial or post-plea independent 16 fact finding by the Board" violated his Sixth Amendment right to trial by jury. (See Pet. at 2017 25; compare to Ex. 1 - Pet. for Review to Cal. Super. Ct.) As a result, Petitioner denied the 18 California Supreme Court the initial opportunity to determine and correct the alleged violations 19 of his federal due process and Sixth Amendment rights. Picard, 404 U.S. at 275). 20 Petitioner has failed to exhaust his state judicial remedies as to all his claim, and thus, his

21 petition must be dismissed based on the comity interests between the federal and state systems. 22 Rose, 455 U.S. at 518-19; see also Picard, 404 U.S. at 275. 23 \\\ 24 \\\ 25 \\\ 26 27 28
Notice of Mot. & Mot. to Dismiss Clifford v. Curry C07-5104 PJH (PR)

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CONCLUSION The Court should dismiss Petitioner's habeas corpus petition based on his failure to exhaust

3 state remedies as to all his claims as required under 28 U.S.C. § 2254(b)(1)(A). 4 5 6 7 8 9 10 11 12 13 14 15 16
MotionClifford40193981.wpd

Dated: December 10, 2007 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General ANYA M. BINSACCA Supervising Deputy Attorney General

/S/ ELIZABETH S. KIM ELIZABETH S. KIM Deputy Attorney General Attorneys for Respondent

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SF2007200844

Notice of Mot. & Mot. to Dismiss

Clifford v. Curry C07-5104 PJH (PR)

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