Free Motion to Dismiss - District Court of California - California

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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 STACEY D. SCHESSER, State Bar No. 245735 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5774 Fax: (415) 703-5843 Email: [email protected]
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9 Attorneys for Respondent Warden Evans 10 11 IN THE UNITED STATES DISTRICT COURT 12 FOR THE'NORTHERN DISTRICT OF CALIFORNIA 13 SAN FRANCISCO DIVISION 14 15 16 17 18 19 20 21 22 23 TO PETITIONER ANGEE BURRELL, IN PROPER: PLEASE TAKE NOTICE that pursuant to 28 U.S.C. § 2254 and Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts, Respondent M.S. Evans, Warden of v. M. S. EVANS, WARDEN, Respondent. Judge: The Honorable Jeffrey S. White ANGEE BURRELL, Petitioner, C08-0846 JSW NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES

24 Salinas Valley State Prison, moves the Court for an order dismissing the above-entitled action on 25 the ground that the Petition is barred under the principle of procedural default. .26 This motion is based on this notice and motion, the supporting memorandum of points and

27 authorities, the pleadings, the records, and the files in this case. 28 ///
Notice of Mot. & Mot. to Dismiss
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PRELIMINARY STATEMENT

Petitioner Burrell, a California state prisoner proceeding pro se, brought this federal habeas corpus action and alleges that he was denied a fair and impartial disciplinary hearing in the

4 adjudication of a rule violation in 2006. (Pet at 5.) Petitioner contends that his right to due 5 process was violated because his hearing was untimely and the evidence to support the guilty 6 finding was insufficient. Petitioner also alleges that he has been denied meaningful and 7 unimpeded access to the courts because his administrative appeals were screened out. (Id.) 8 However, because the state court denied Burrell's claims as a result of his failure to properly

9 exhaust his administrative appeals - a state-law ground that is independent of the federal 10 question and adequate to support the judgment - the doctrine of procedural default bars Burrell 11 12 13 from obtaining federal relief.
STATEMENT OF RELEVANT FACTS

On October 29, 2006, prison officials found Burrell guilty of a prison disciplinary violation

14 for conspiring to introduce a controlled substance into the prison. On August 10, 2007, the 15 Monterey County Superior Court denied Burrell's petition for habeas corpus. (Ex. 1.) The state 16 court found that Burrell's hearing was not untimely and there was some evidence to support the 17 guilty finding. (Ex. 1 at 2-3.) In addition, the superior court also found that Burrell's challenge 18 to the guilty finding also failed because he did not exhaust his administrative remedies. (Ex. 1 at 19 4.) For these reasons, the state court denied the habeas petition. 20 21 On October 3, 2007, the California Court of Appeal summarily denied Burrell's petition for habeas corpus. (Ex. 2.) Finally, on November 28, 2007, the California Supreme Court issued a

22 denial of Burrell's petition with a citation to In re Dexter (1979) 25 Cal.3d 921. (Ex. 3.) 23 24 25 26 27
ARGUMENT I. THE PETITION SHOULD BE DISMISSED BECAUSE ITS REVIEW BY THIS COURT IS BARRED UNDER THE PRINCIPLE OF PROCEDURAL DEFAULT.

Procedural default is a preliminary issue before a federal court's consideration of the merits

28 of a claim. Lambrix v. Singletary, 520 U.S. 518, 524 (1997); see also Martinez-Villareal v.
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Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (reversing the district court's grant of the writ on the

2 merits because no cause or prejudice had been shown to excuse the default). Under the doctrine 3 of procedural default, when a prisoner has defaulted a claim by violating a state procedural rule that is independent of federal law, and adequate to support the judgment, he may not raise the claim in federal habeas. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). Thus, a prisoner who fails to satisfy the state procedural requirements forfeits his right to present his claim in federal habeas. Murray v. Carrier, 477 U.S. 478, 485-492 (1986). The petitioner may only 8 overcome this bar if he establishes cause and actual prejudice to excuse his default. Moran v.

9 McDaniel, 80 F.3d 1261, 1270 (9th Cir. 1996). 10 11 12 13 If a state court refuses to hear a state prisoner's federal claims because the prisoner failed to comply with a regularly enforced state procedural requirement, the independent and adequate A. The California Supreme Court Denied Burrell's Claim Because His Petition Failed to Observe the State's Administrative Exhaustion Requirement.

14 state ground doctrine serves to bar federal habeas for those claims. Coleman, 501 U.S. 729-30. 15 Here, the California Supreme Court denied Burrell's habeas claim with a citation to In re Dexter, 16 25 Cal.3d 921 (1979). (Ex. 3.) By citing to In re Dexter, the California Supreme Court is relying 17 on a procedural bar as a basis for disposing of Burrell's case. Coleman, 501 U.S. at 740. In 18 Dexter, the California Supreme Court held that generally, "a litigant will not be afforded judicial 19 relief unless he has exhausted available administrative remedies." Dexter, 25 Cal.3d at 925. The 20 court also noted in Dexter that the administrative exhaustion requirement "applies to grievances 21 lodged by prisoners." Id. Thus, in issuing its denial with a citation to a case that stands for a

22 state procedural rule and is without mention of federal law, the California Supreme Court fairly 23 24 25 26 "For a state procedural rule to be `independent,' the state law basis for the decision must not rested its judgment on a state procedural ground. Coleman, 501 U.S. at 740. B. The State's Administrative Exhaustion Requirement Is Independent of Federal Law and an Adequate State Law Ground.

27 be interwoven with federal law." La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001) (citing 28 Michigan v. Long, 463 U.S. 1032, 1040-1041 (1983)). A state law is so interwoven if the state's
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"application of the procedural bar depend[s] on an antecedent ruling on federal law [such as] the

2 determination of whether federal constitutional error has been committed." Park v. California, 3 4 5 202 F.3d 1146, 1152 (9th Cir. 2000) (quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985)). Here, California's administrative exhaustion requirement - as applied in the California Supreme Court case of In re Dexter, 25 Cal.3d 921 (1979) - falls entirely under state law. The

6 exhaustion prerequisite does not rely on nor is interwoven with federal law, but rather is a long7 established state rule. 'Dexter, 25 Cal.3d at 925 (describing administrative exhaustion 8 requirement as a "general rule" and citing several California cases); see also In re Muszalski, 52 9 Cal.App.3d 500, 503 (1075) (describing requirement as "well settled as a general proposition"). 10 11 To be deemed adequate, the state-law ground for the decision must be well-established and consistently applied. Poland v. Stewart, 169 F.3d 573, 577 (9th Cir. 1999) ("A state procedural

12 rule constitutes an adequate bar to federal court review if it was `firmly established and regularly 13 followed' at the time it was applied by the state court." (quoting Ford v. Georgia, 498 U.S. 411,

14 424 (1991)).) 15 Indeed, California's rule that an inmate must exhaust his administrative appeals is well-

16 established and has been applied since 1941. Abelleira v. District Court of Appeal, 17 Cal.2d 17 280, 292 (1941). In addition, California courts have consistently applied this rule since 18 Abelleira. E.g., Dexter, 25 Cal.3d at 925; In re Muszalski, 52 Cal.App.3d at 503; In re Serna, 76 19 Cal.App.3d 1010, 1014 (1978); Humes v. Margil Ventures, Inc., 174 Cal.App.3d 486, 494 20 (1985); Wright v. State, 122 Cal.App.4th 659 (2004). 21 Therefore, in denying Burrell's state habeas petition, the California Supreme Court is clearly

22 relying on an independent and adequate state ground to deny relief by citing to theDexter 23 24 25 26 When a state prisoner has "defaulted his federal claims in state court pursuant to an opinion. Accordingly, the state's procedural rule ' constitutes a bar to federal review of his claims. C. Burrell Cannot Establish Cause, Actual Prejudice, nor Fundamental Miscarriage of Justice.

27 independent and adequate state procedural rule, federal habeas review of the claims is barred 28 unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the
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alleged violation of federal law, or demonstrate that failure to consider the claims will result in a 2 fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also Park v. California, 202 3 F.3d 1146, 1150 (9th Cir. 2000) (a district court properly refuses to reach the merits of a habeas

4 petition if the petitioner defaulted on the state's procedural requirements and is unable to 5 demonstrate cause and prejudice or a fundamental miscarriage of justice). "Cause" is a

6 legitimate excuse for the default, and "prejudice" is actual harm resulting from the alleged 7 constitutional violation. Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). 8 Respondent has sufficiently raised and also demonstrated that the Dexter case constitutes an

9 independent and adequate state law ground supporting the denial of Petitioner's habeas claims. 10 The burden is now on Petitioner to place the procedural default defense in issue. See Bennett v. 11 Mueller, 296 F.3d 752 (9th Cir. 2002), amended en banc, reh'g denied, 322 F.3d 573, 584-86

12 (9th Cir. 2003) (setting forth burden shifting system to plead, refute, and prove adequacy of state 13 law ground). General denials will not suffice; Petitioner must make specific allegations,

14 including citation to authorities, to demonstrate the state courts' inconsistent application of its 15 rules. Id. 16 Petitioner also has the burden of showing cause or actual prejudice to excuse his procedural

17 default, and of showing fundamental miscarriage of justice. Moran v. McDaniel, 80 F.3d 1261, 18 1270 (9th Cir. 1996). Petitioner will not be able to meet this burden of showing cause because he

19 does not have legitimate grounds for his failure to exhaust administrative remedies. He claims 20 his appeals were improperly screened out, however he failed to follow specific instructions on 21 the Inmate Appeal Screening Form to challenge the decision. (See Pet., Ex. A at 5, Inmate/

22 Parolee Appeal Screening Form, CDCR-695, dated 12/20/2006; Pet. Ex. C at 2, Inmate/ Parolee 23 Appeal Screening Form, CDCR-695, dated 01/23/2007.) If an inmate believes a screen-out was 24 improper, yet does not follow the proper procedures to explain why his appeal should be 25 processed, this does not excuse a failure to exhaust administrative remedies. (Id.) Consequently, 26 Petitioner cannot show a legitimate excuse for the default. 27 Accordingly, the burden now rests on Burrell to show cause and actual prejudice, or a

28 miscarriage of justice. If he fails to meet this burden, the Petition must be dismissed under the
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doctrine of procedural default. CONCLUSION Because the California Supreme Court denied Burrell's habeas petition for his failure to

4 exhaust his administrative remedies, the current Petition is barred by the doctrine of procedural 5 default. If Burrell fails to meet his burden - by showing the inadequacy of the state's

6 procedural bar, a cause for the procedural default and actual prejudice, or a fundamental 7 miscarriage of justice - Respondent respectfully requests that the Petition for Writ of Habeas 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
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Corpus be dismissed.

Dated: June 30, 2008 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

STACEY D. SCHESSER Deputy Attorney General Attorneys for Respondent

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DECLARATION OF SERVICE BY U.S. MAIL Case Name: No.: Burrell v. Evans

C08-0846 JSW

I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On June 30, 2008, I served the attached NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Angee Burrell, T-48872 Salinas Valley State Prison P.O. Box 1020 Soledad, CA 93960-1020 In Pro Per I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on June 30, 2008, at San Francisco, California.

L. Santos Declarant
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Signature

LL-

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