Nilsen v. Howe

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 MICHAEL DAVID NILSEN, Case No. 19-cv-02917-PJH 8 Petitioner, ORDER GRANTING RESPONDENT'S 9 v. MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY 10 LAKE COUNTY SUPERIOR COURT, APPELLATE DEPT., et al., Re: Dkt. No. 20 — 11 — Respondents. — 12 — 13 This is a habeas case brought pro se by a former prisoner under 28 U.S.C. § 14 2254, challenging a conviction involving several misdemeanors. Respondent has filed a 15 motion to dismiss on the ground that the petition is unexhausted. Petitioner has filed an 16 opposition and respondent filed a reply. For the reasons that follow, the motion is 17 granted. 18 DISCUSSION 19 Exhaustion 20 An application for a federal writ of habeas corpus filed by a prisoner who is in state 21 custody pursuant to a judgment of a state court may not be granted unless the prisoner 22 has first exhausted state judicial remedies, either by way of a direct appeal or in collateral 23 proceedings, by presenting the highest state court available with a fair opportunity to rule 24 on the merits of each and every issue he or she seeks to raise in federal court. See 28 25 U.S.C. § 2254 (b),(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Petitioner has 26 the burden of pleading exhaustion in his or her habeas petition. See Cartwright v. Cupp, — 27 — 650 F.2d 1103, 1104 (9th Cir. 1981). 1 A petitioner fully and fairly presents a claim to the state courts “if he presents the 2 claim (1) to the correct forum; (2) through the proper vehicle; and (3) by providing the 3 factual and legal basis for the claim. Full and fair presentation additionally requires a 4 petitioner to present the substance of his claim to the state courts, including a reference 5 to a federal constitutional guarantee and a statement of facts that entitle the petitioner to 6 relief.” Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009) (citations omitted). 7 Misdemeanor appeals follow a different track than felony appeals in California. 8 McMonagle v. Meyer, 802 F.3d 1093, 1096 (9th Cir. 2015) (en banc). Misdemeanants 9 appeal their convictions to the appellate division of the superior court in which they were 10 convicted, Cal. Pen. Code § 1466 , and if the appellate division affirms the conviction, 11 then they may request certification of the case for transfer to the California Court of 12 Appeal for further review, Cal. R. Ct. 8.1005(b). Id. “If certification is denied, the 13 misdemeanant may petition the Court of Appeal directly to accept transfer of the case.” — 14 — Id., citing Cal. R. Ct. 8.1002, 8.1006. If the appellate court denies the transfer, the denial 15 is final immediately, and the misdemeanant may not appeal the denial to the California 16 Supreme Court, Cal. R. Ct. 8.500(a)(1). Id. Misdemeanor convictions become final upon 17 the denial of a petition to accept transfer by the appellate court, and therefore final for 18 AEDPA purposes ninety days after the denial of the transfer. Id. at 1098-99 (overruling 19 Larche v. Simons, 53 F.3d 1068 (9th Cir. 1995), which held that California 20 misdemeanants must seek habeas relief from the state high court in order to fully exhaust 21 their claims, because it created undue confusion in the wake of AEDPA’s enactment and 22 unduly restricted the state’s ability to dictate its own systems of appellate review). 23 On May 25, 2018, petitioner was found guilty of several misdemeanors. Docket 24 No. 10, Ex. B at 4. The judgment was affirmed by the appellate division of the superior 25 court on March 25, 2019. Id. Petitioner did not request certification of the case for 26 transfer to the California Court of Appeal nor did he petition the California Court of Appeal 27 directly to accept transfer of the case. 1 On April 25, 2019, petitioner filed a habeas petition in the California Court of 2 Appeal, that was denied on April 29, 2019. Motion to Dismiss, Exs. 1, 2. On May 7, 3 2019, filed a petition in the California Supreme Court, that was denied on May 22, 2019. — 4 — Id., Ex. 3. 5 In this case, the judgement was affirmed by the appellate division of the superior 6 court on March 25, 2019. Petitioner failed to request certification of the case for transfer 7 to the California Court of Appeal nor did he petition the California Court of Appeal directly 8 to accept transfer of the case. Therefore, the claims were not exhausted. See Lull v. 9 California, No. 17-1673, 2018 WL 3388593 , *2 (E.D. Cal. 2018) (claims not exhausted 10 where petitioner failed to seek transfer of case to California Court of Appeal). Petitioner 11 did file a habeas petition in the California Supreme Court. Motion to Dismiss, Ex. 3. 12 Even assuming that this petition could serve to exhaust his misdemeanor claims, the 13 claim presented in that petition is not one of the two claims in this federal petition. Id. 14 Petitioner does not contest that he failed to follow the proper exhaustion 15 procedures for the cognizable claims in this petition. In his opposition (Docket No. 25), 16 he argues that a claim dismissed at screening (Docket No. 11), was properly exhausted. 17 Assuming that this claim was exhausted, it was dismissed and is not part of this petition. 18 To the extent petitioner seeks reconsideration, any such request is denied. Petitioner 19 argues that the state court that found him guilty did not have jurisdiction, because he 20 sought recusal of the trial judge which he argues was improperly denied by the appellate 21 department. Opposition at 2. As noted in the prior order, petitioner’s claim that state law 22 and procedures were violated fails to state a federal claim. See Estelle v. McGuire, 502 23 U.S. 62, 68 (1991) (“We have stated many times that federal habeas corpus relief does 24 not lie for errors of state law.”) For all these reasons, petitioner’s claims in this petition 25 are unexhausted. 26 CONCLUSION 27 1. Respondent’s motion to dismiss (Docket No. 20) is GRANTED. The petition is 1 2. The clerk shall substitute Rob Howe, Chief Probation Officer of Lake County, 2 as respondent. 3 APPEALABILITY 4 The federal rules governing habeas cases brought by state prisoners require a 5 district court that enters a final order adverse to the petitioner to grant or deny a 6 certificate of appealability (“COA”) in the order. See Rule 11(a), Rules Governing § 2254 7 Cases, 28 U.S.C. foll. § 2254. 8 A petitioner may not appeal a final order in a federal habeas corpus proceeding 9 without first obtaining a certificate of appealability. See 28 U.S.C. § 2253 (c); Fed. R. 10 App. P. 22(b). Section 2253(c)(1) applies to an appeal of a final order entered on a 11 procedural question antecedent to the merits, for instance a dismissal on statute of 12 limitations grounds, as here. See Slack v. McDaniel, 529 U.S. 473, 483 (2000). 13 “Determining whether a COA should issue where the petition was dismissed on 14 procedural grounds has two components, one directed at the underlying constitutional 15 claims and one directed at the district court’s procedural holding.” Id. at 484-85 . “When 16 the district court denies a habeas petition on procedural grounds without reaching the 17 prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, 18 at least, that jurists of reason would find it debatable whether the petition states a valid 19 claim of the denial of a constitutional right and that jurists of reason would find it 20 debatable whether the district court was correct in its procedural ruling.” Id. at 484 . As 21 each of these components is a “threshold inquiry,” the federal court “may find that it can 22 dispose of the application in a fair and prompt manner if it proceeds first to resolve the 23 issue whose answer is more apparent from the record and arguments.” Id. at 485 . 24 Supreme Court jurisprudence “allows and encourages” federal courts to first resolve the 25 procedural issue, as was done here. See id. 26 Here, the court declines to issue a COA regarding the procedural holding or the 27 underlying claims because reasonable jurists would not find the court’s findings 1 The court therefore DENIES a COA. 2 IT IS SO ORDERED. 3 Dated: August 13, 2020 — 4 — 5 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 6 United States District Judge — 7 — — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 —