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United States District Court

Eastern District of California 

Richard L. Alley,

Petitioner, No. Civ. S 04-1934 MCE PAN P

vs. Findings and Recommendations

Tom L. Carey,

Respondent.

-oOoPetitioner, a state prisoner without counsel, seeks a writ

of habeas corpus. See 28 U.S.C. § 2254. Respondents move to

dismiss upon the ground petitioner’s default of state procedures

bars federal review of his claims. Petitioner opposes. 

November 15, 2001, petitioner was found guilty of a

disciplinary violation and later was denied release to parole in

part because of the disciplinary decision. November 20, 2001,

petitioner received a written order adjudicating him guilty.

February 11, 2002, petitioner filed an administrative 

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appeal. February 14, 2002, the appeal was rejected as untimely.

Petitioner sought habeas relief in the Marin County Superior

Court. The court denied relief upon the ground petitioner failed

to exhaust available administrative remedies.

Petitioner sought habeas relief in the First District Court

of Appeal. The court denied relief upon the ground petitioner

failed to exhaust available administrative remedies.

Petitioner sought habeas relief in the California Supreme

Court. Citing In re Dexter, 25 Cal.3d 921 (1979), the California

Supreme Court denied relief. Dexter requires state prisoners to

exhaust the available administrative remedies before seeking

habeas corpus relief. 

Respondent contends petitioner’s default of the rule

requiring prisoners to exhaust available administrative remedies

before seeking habeas relief bars federal review. 

Before seeking federal habeas relief, a state prisoner must

fairly present his claims to the highest state court so that 

court has an opportunity to rule on the merits of his federal

claims. Picard v. Connor, 404 U.S. 270, 278 (1971). A

petitioner who defaults a state procedural rule that is

independent of federal law and adequate to support the judgment

is barred from obtaining federal habeas review of his claims

unless he can show either cause for the default and actual

prejudice as a result of the alleged violation of federal law, or 

that failure to consider the claims will result in a fundamental

miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750

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 Futility is shown by evidence the agency has declared what its rule

or policy will be in a particular case. Gantner & Mattern Co. v. California

E. Com., 17 Cal.2d 314, 318 (Cal. 1941).

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(1991). A state ground is adequate and independent if the last

state court to which the petitioner presented the claim actually

relied on a state rule that was sufficient to justify the

decision. Valerio v. Crawford, 306 F.3d 742, 773 (9th Cir. 2002)

(en banc), cert denied, 538 U.S. 994 (2003). A state ground is

independent if it is not interwoven with federal law, viz.,

application of the rule is not dependent on an antecedent ruling

of federal law. Park v. California, 202 F.3d 1146, 1152 (9th

Cir. 2000). A state rule is adequate if it is firmly established

and regularly followed by state courts at the time of the

purported default. Lee v. Kemma, 534 U.S. 362, 389 (2002); Hill

v. Roe, 321 F.3d 787, 790 (9th Cir. 2003). Once the state

sufficiently pleads adequacy, the burden shifts to petitioner to

make specific factual allegations demonstrating inadequacy,

including citation to authority demonstrating inconsistent 

application of the rule. Bennett v. Mueller, 322 F.3d 573, 585-

86 (9th Cir.), cert. denied, 540 U.S. 938 (2003).

Dexter requires prisoners to exhaust available

administrative remedies before seeking relief from the courts

unless it would be futile so to do. Dexter, 160 Cal.Rptr. at 

121.1 Since Dexter is based solely on state law, the rule is

independent of federal law. See Carter v. Giurbino, 385 F.3d

1194, 1197-98 (9th Cir. 2004) (state rule independent where

“[n]o federal analysis enters into the [rule’s] equation”).

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Courts have required litigants to exhaust available state

remedies before pursuing judicial remedies since 1941. See

Abelleira v. District Court of Appeal, 17 Cal.2d 280, 292 (Cal.

1941). The rule was firmly established in November 2001, at the

time of petitioner’s purported default. The rule has been

applied consistently since Abelleria. See, e.g., In re

Muszalski, 52 Cal.App.3d 500, 503 (Cal. 1975); In re Thompson, 52

Cal.App.3d 780, 783 (Cal. 1975); In re Serna, 76 Cal.App.3d 1010,

1014 (Cal. 1978); Wright v. State, 19 Cal.Rptr.3d 92, 95-97 (Cal.

App. 2004); People v. Mendoza, 187 Cal.App.3d 948, 954-55 (Cal.

App. 1986). Petitioner demonstrates the courts have carved out

and applied exceptions to the rule, but he makes no showing by

reference to published or unpublished state court decisions that

the rule is applied inconsistently or selectively.

The rule of Dexter is an adequate and independent state

ground that bars this court from reaching the merits of

petitioner’s claims.

Petitioner contends his movement between state and county

facilities and concomitant deprivation of access to the CDC

administrative remedy is cause for the default. “Cause” is

“something external to the petitioner,” viz., some “objective

factor external to the defense” which impeded efforts to comply

with the state’s procedural rule. Coleman, 501 U.S. at 753; 

Murray v. Carrier, 477 U.S. 478, 488 (1986).

To appeal a disciplinary conviction a prisoner must, within

15 work days of the adverse action, submit to CDC officials on a

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“CDC Form 602,” a description of the problem and the action

requested, attaching only documents necessary to clarify the

appeal. 15 Cal. Admin. Code §§ 3084.2, 3084.6. Failure to

attach supporting documents is grounds to reject an appeal. 15

Cal. Admin. Code § 3084.3.

Petitioner was found guilty of the infraction November 15,

2001. November 20, 2001, he received a written rules violation

report. Petitioner asserts he placed the report on his bed

because he immediately was to be transported to the Sacramento

County Jail and he could not take legal materials with him. 

Petitioner returned from Sacramento December 11, 2001, and

immediately was placed in administrative segregation, where he

remained until January 25, 2002, when he was transferred to

California State Prison, Solano. While segregated, he requested

legal materials for matters pending in court. January 14, 2002,

petitioner received legal materials, but not a copy of the rules

violation report. He obtained a copy of the report February 5,

2002, at a classification committee hearing.

February 11, 2002, petitioner appealed the November 15,

2001, disciplinary conviction. Prison officials rejected the

appeal as untimely, specifically finding petitioner could have

filed while in administrative segregation, as evidenced by other 

grievances he filed.

Petitioner could not appeal the disciplinary conviction

while at the Sacramento County Jail, but prison officials faulted

him for not appealing upon his return while he was in

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administrative segregation. In his requests for legal materials,

petitioner identified specific papers he needed but did request

the November 20, 2001, disciplinary report. Notwithstanding

petitioner was required to attach the report to an appeal,

petitioner could have requested the report or could have alleged

in a timely appeal he could not attach the report because prison

staff denied him a copy of it. Petitioner did not attempt to

obtain the report or to file an appeal explaining why he could

not attach the report, despite he filed other appeals while in

administrative segregation.

Insofar as petitioner asserts his dyslexia and illiteracy

constitute cause for the default, the Ninth Circuit has decided

this issue to the contrary. Hughes v. Idaho State Bd. of

Corrections, 800 F.2d 905, 907-09 (9th Cir. 1986) (pro se

petitioner’s illiteracy not cause for default of a state’s

procedural rule); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th

Cir. 1988) (diagnosis as “borderline mental defective” and

reliance upon “incompetent jailhouse lawyers” is not cause).

Petitioner has failed to show something external to his

defense impeded efforts to comply with the exhaustion

requirement. 

For these reasons, petitioner’s default of state procedures

bars this court from reaching the merits of petitioner’s claims. 

Accordingly, I hereby recommend respondents’ February 23,

2005, motion to dismiss be granted and that this action be

dismissed.

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Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Objections may be filed

within 20 days after service of these findings and

recommendations. The document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The district

judge may accept, reject, or modify these findings and

recommendations in whole or in part.

Dated: August 30, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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