noting that a court may take judicial notice of federal and state court 19 records
How later courts described this case
- noting that a court may take judicial notice of federal and state court 19 records
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 WILLIAM BARTON, Case No. CV 21-02508 FMO (RAO)
12 Petitioner, MEMORANDUM AND ORDER
RE SUMMARY DISMISSAL OF
13 v. PETITION FOR WRIT OF
HABEAS CORPUS AND DENIAL
14 SAN JOAQUIN, OF CERTIFICATE OF
APPEALABILITY
15 Respondent.
16
17
I. BACKGROUND
18
On March 14, 2021, Petitioner William Barton constructively filed a Petition
19
for Writ of Habeas Corpus (“Petition”), which he labels “Petition for Modification
20
of Sentence.” Dkt. No. 1 at 2.
21
Petitioner was convicted of his underlying criminal offense in March 1976.
22
Petition at 2. In the instant Petition, Petitioner asserts that he is not guilty and has
23
appealed his sentence but he fails to set forth any grounds for relief. See Petition at
24
3 (stating that he is “proceed[ing] currently on fourth amend[ed] petition. See ECF
25
No. 38.”). Records of the California Supreme Court indicate that Petitioner has not
26
27
28
1 filed any appeals or state habeas petitions with that court.1 Further, the Court notes
2 that this is the latest of multiple habeas petitions filed by Petitioner starting in 2018,
3 all of which have been dismissed for failure to exhaust state court remedies.2
4 On January 22, 2020, Magistrate Judge Oliver held a hearing in a separate
5 habeas matter brought by Petitioner. See Barton v. Superior Court, CV 19-10418-
6 FMO (RAO), Dkt. No. 7. At the hearing, Judge Oliver discussed with Petitioner his
7 numerous habeas filings and explained the exhaustion requirement. Id.
8 II. DISCUSSION
9 Under Rule 4 of the Rules Governing Section 2254 Cases in the United States
10 District Courts, the Court may dismiss a petition “[i]f it plainly appears from the
11 petition and any attached exhibits that the petitioner is not entitled to relief in the
12 district court.” A federal court may raise the failure to exhaust issue sua sponte and
13 may summarily dismiss on that ground. Stone v. San Francisco, 968 F.2d 850, 856
14 \\
15
1 The Court takes judicial notice of the records of the California Supreme Court,
16 which are available at http://appellatecases.courtinfo.ca.gov. See Fed. R. Evid.
201(b)(2) (providing that a court may take judicial notice of adjudicative facts that
17
“can be accurately and readily determined from sources whose accuracy cannot
18 reasonably be questioned”); Harris v. Cty. of Orange, 682 F.3d 1126, 1131-32 (9th
Cir. 2012) (noting that a court may take judicial notice of federal and state court
19
records).
20 2 See Barton v. People State of California, CV 18-5863-FMO (RAO) (C.D. Cal., filed
July 3, 2018); Barton v. Superior Court, CV 18-6853-FMO (RAO) (C.D. Cal., filed
21
Aug. 9, 2018); Barton v. Board of Parole Hearings, CV 18-9707-FMO (RAO) (C.D.
22 Cal., filed Nov. 16, 2018); Barton v. People of the State of California, CV 19-546-
FMO (RAO) (C.D. Cal., filed Dec. 28, 2018); Barton v. Clerk of U.S. District Court,
23
et al., CV 19-1178-FMO (RAO) (C.D. Cal., filed Jan. 25, 2019); Barton v. San
24 Joaquin, CV 19-4831-FMO (RAO) (C.D. Cal., filed June 3, 2019); Barton v.
Gastelo, CV 19-6535-FMO (RAO) (C.D. Cal., filed July 29, 2019); Barton v.
25
Superior Court, CV 19-7382-FMO (RAO) (C.D. Cal., filed Aug. 26, 2019); Barton
26 v. Superior Court, CV 19-9516-FMO (RAO) (C.D. Cal., filed Nov. 5, 2019); Barton
v. Superior Court, CV 19-10418-FMO (RAO) (C.D. Cal., filed Dec. 6, 2019); Barton
27
v. San Joaquin, CV 20-00078-FMO (RAO) (C.D. Cal., filed Jan. 3, 2020); Barton v.
28 Clerk of Court, CV 20-01304-FMO (RAO) (C.D. Cal., filed Feb. 10, 2020).
1 (9th Cir. 1992) (citing Granberry v. Greer, 481 U.S. 129, 134, 107 S. Ct. 1671, 95
2 L. Ed. 2d 119 (1987).)
3 A state prisoner must exhaust his state court remedies before a federal court
4 may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan
5 v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 144 L. Ed. 2d. 1 (1999). To satisfy
6 the exhaustion requirement, a habeas petitioner must fairly present his federal claims
7 in the state courts in order to give the State the opportunity to pass upon and correct
8 alleged violations of the prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364,
9 365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (per curiam). A habeas petitioner must
10 give the state courts “one full opportunity” to decide a federal claim by carrying out
11 “one complete round” of the state’s appellate process in order to properly exhaust a
12 claim. O’Sullivan, 526 U.S. at 845. He must present his claims to the highest state
13 court with jurisdiction to consider it or demonstrate that no state remedy remains
14 available. Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc).
15 Here, the records of the California Supreme Court do not reflect any appeals
16 or habeas petitions filed by Petitioner. Although the exhaustion requirement may be
17 excused under limited circumstances, see 28 U.S.C. § 2254(b)(1)(B)(i)-(ii), none of
18 these circumstances appear to exist here. Petitioner has failed to exhaust his claim in
19 state court, and summary dismissal of this action is appropriate.
20 Dismissal of the Petition is without prejudice to Petitioner’s later pursuing
21 habeas relief in federal court upon exhausting available remedies in the state courts.
22 Petitioner is warned, however, that under 28 U.S.C. § 2244(d)(1), “[a] 1-year period
23 of limitations shall apply to an application for a writ of habeas corpus by a person in
24 custody pursuant to the judgment of a State court.”
25 III. CERTIFICATE OF APPEALABILITY
26 A state prisoner seeking to appeal a district court’s final order in a habeas
27 corpus proceeding must obtain a Certificate of Appealability (“COA”) from the
28 district judge or a circuit judge. 28 U.S.C. § 2253(c)(1)(A). A COA may issue “only
1 || if the applicant has made a substantial showing of the denial of a constitutional right.”
2 |} 28 U.S.C. § 2253(c)(2). When the Court dismisses a petition on procedural grounds,
3 || as here, it must issue a COA if the petitioner shows: (1) “that jurists of reason would
4 || find it debatable whether the petition states a valid claim of the denial of a
5 || constitutional right”; and (2) “that jurists of reason would find it debatable whether
6 || the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.
7 || 473, 478, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000).
8 Here, the Court is summarily dismissing the instant Petition without prejudice
9 || because the Court has determined that Petitioner has failed to exhaust his habeas
10 || claim in state court. The Court finds that Petitioner cannot make the requisite
11 || showing that jurists of reason would find it debatable whether the district court was
12 || correct in its procedural ruling.
13 IV. QRDER
14 Based on the foregoing, IT IS ORDERED THAT:
15 1. The Petition is DISMISSED without prejudice; and
16 2. A Certificate of Appealability is DENIED.
17
18 || DATED: March 25, 2021
19 SA
FERNANDO M. OLGUIN
20 UNITED STATES DISTRICT JUDGE
21
|| Presented by:
23/1 Re
ROZELLA A. OLIVER
2° || UNITED STATES MAGISTRATE JUDGE
26
27
28