1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

 “A petitioner for habeas corpus relief must name the state officer having custody of him

or her as the respondent to the petition.” Stanley v. California Supreme Court, 21 F.3d 359, 360

(9th Cir. 1994) (citing Rule 2(a), 28 U.S.C. foll. § 2254). The court substitutes in Warden A.K.

Scribner as the correct respondent. 

2

 In exchange for petitioner’s guilty plea, the prosecutor dismissed allegations that

petitioner had two prior robbery convictions within the meaning of the Three Strikes Law. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ALONZO McKINNEY, 

Petitioner, No. CIV S-04-1678 LKK GGH P

vs.

A.K. SCRIBNER1, et al., 

Respondents. FINDINGS AND RECOMMENDATIONS

 /

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2003 conviction for battery upon

a correctional officer in violation of Cal. Penal Code § 4501.5.2 Petitioner is serving a sentence

of two years for this conviction. The petition contains claims alleging ineffective assistance of

trial and appellate counsel. 

/////

Case 2:04-cv-01678-LKK -GGH Document 30 Filed 07/06/05 Page 1 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

 Since his conviction, petitioner filed habeas petitions in the Lassen County Superior

Court and the California Court of Appeal but they did not challenge the at-issue conviction.

2

In the answer respondent argues, in part, that the claims raised in the petition are

not exhausted. After reviewing the record, the court finds that the claims are not exhausted,

although on different grounds than raised by respondent.

Legal Standard

The exhaustion of state court remedies is a prerequisite to the granting of a

petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must

be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion,

thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by

providing the highest state court with a full and fair opportunity to consider all claims before

presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 512

(1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). 

Analysis

After the California Court of Appeal affirmed petition’s conviction, petitioner did

not file a petition for review. According to respondent, petitioner did not file habeas petitions in

the Lassen County Superior Court or the California Court of Appeal challenging his conviction.3

On January 2, 2004, petitioner filed a habeas corpus petition in the California Supreme Court, no.

S121624. In this petition, petitioner challenged a 1986 conviction for robbery and receiving

stolen property. See petition lodged May 31, 2005, p. 3. Page 9 of the state petition is a cover

page for the exhibits attached to this petition. 

Attached as an exhibit to the petition filed in the California Supreme Court

challenging the 1986 robbery conviction is a habeas corpus petition addressed to the Lassen

County Superior Court challenging the at-issue 2003 conviction for battery on a correctional

officer. Id., p. 14. For some reason, the California Supreme Court also stamped this petition

with case no. S121624. This petition contains no stamp indicating that it was ever filed in

Case 2:04-cv-01678-LKK -GGH Document 30 Filed 07/06/05 Page 2 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

Lassen County Superior Court. Also attached as an exhibit is a copy of the order by the

California Court of Appeal affirming petitioner’s conviction for battery on a peace officer.

On September 29, 2004, the California Supreme Court denied petitioner’s habeas

corpus petition, no. S121624, by order citing In re Clark, 5 Cal.4th 750 (1993), In re Robbins, 18

Cal.4th 770, 780 (1998), and In re Swain, 34 Cal.2d 300, 304 (1949). The citations to Clark and

Robbins indicate that the California Supreme Court found that petitioner failed to timely present

his claims. In re Sanders, 21 Cal.4th 697, 703-704, 87 Cal. Rptr. 2d 899, 903-904 (1999). The

California Supreme Court cites Swain to indicate either that the claims are not timely or that the

facts supporting the claims are not alleged with sufficient particularity. Id. (untimely); Kim v.

Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986) (not alleged with sufficient particularity). A

citation to Swain indicating that claims were not alleged with sufficient particularity generally

means that the claims are not exhausted. 799 F.2d at 1319-1320.

In the instant case, respondent mistakenly assumes that case no. S121624 filed by

petitioner in the California Supreme Court challenged his 2003 conviction. Based on this wrong

assumption, respondent argues that the claims are procedurally defaulted based on the Clark and

Robbins citations. Alternatively, respondent argues that the claims are not exhausted pursuant to

the Swain citation. 

As stated above, in order to satisfy the exhaustion requirement, a petitioner must

provide the highest state court will a full and fair opportunity to consider his claims. Picard v.

Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971). Petitioner did not fully and fairly present

his claims challenging the 2003 conviction by attaching a petition challenging this conviction as

an exhibit to the petition challenging the 1986 conviction. This was not the proper vehicle by

which to challenge the 2003 conviction, and although the exhibit was stamped by a clerk with the

same number as the petition, it is highly doubtful that the justices of the state supreme court

viewed the exhibit as the petition at issue. See Castille v. Peoples, 489 U.S. 346, 351, 109 S. Ct.

1056 (1989).

Case 2:04-cv-01678-LKK -GGH Document 30 Filed 07/06/05 Page 3 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4

That the California Supreme Court separately stamped the petition challenging the

2003 conviction with case no. S121624 could suggest that it separately considered this petition,

and did not treat it as just as an exhibit. However, the citations to Robbins, Clark and Swain

indicate that the California Supreme Court did not separately consider this petition because these

citations applied only to the petition challenging the 1986 conviction. The petition challenging

the 2003 conviction (direct review completed in November 2003) was clearly not untimely. 

Therefore, the citations to Swain, to the extent it stood for untimeliness, and Robbins and Clark

applied only to claims challenging the 1986 conviction. Because the claims challenging both the

1986 and 2003 convictions were understandable, the court does not find that the California

Supreme Court cited Swain for the proposition that the claims raised in either petition were not

pled with sufficient particularity.

For the reasons discussed above, the court finds that the claims raised in the

instant petition have not been fairly presented to the California Supreme Court. Because the

claims are not exhausted, the petition should be dismissed.

Accordingly, IT IS HEREBY RECOMMENDED that the petition be dismissed

for lack of exhaustion.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised 

\\\\\

\\\\\

\\\\\

\\\\\

Case 2:04-cv-01678-LKK -GGH Document 30 Filed 07/06/05 Page 4 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: 7/5/05

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

mck1678.157

Case 2:04-cv-01678-LKK -GGH Document 30 Filed 07/06/05 Page 5 of 5