Nilsen v. Howe
- Phyllis Hamilton
- 4:19-cv-02917
- U.S. District Court · Northern District of California
- 5
In Nilsen v. Howe, Judge Hamilton granted respondent’s motion to dismiss unexhausted habeas claims and denied a certificate of appealability.
Michael David Nilsen’s federal challenge to his misdemeanor conviction was dismissed on exhaustion grounds without a decision on the underlying constitutional claims. The clerk was directed to substitute Rob Howe as respondent, and no certificate of appealability was issued.
What happened
In Nilsen v. Howe, Michael David Nilsen, representing himself, challenged a misdemeanor conviction in a federal petition. The respondent argued that Nilsen had not completed the required state-court review.
The court agreed that the claims were unexhausted because Nilsen did not seek transfer of his misdemeanor appeal to the California Court of Appeal. The court also concluded that his California Supreme Court petition did not present the same claims raised federally. It granted the respondent’s motion to dismiss and denied a certificate of appealability.
Judge Phyllis J. Hamilton also directed the clerk to substitute Rob Howe, identified as Lake County’s Chief Probation Officer, as the respondent. The opinion text provided here cuts off partway through the conclusion after stating that the petition is to be addressed in the dismissal order.
The detailed version
- Nilsen v. Howe · No. 4:19-cv-02917
- Phyllis Hamilton
- Aug. 13, 2020
Background
Michael David Nilsen, a former prisoner proceeding without a lawyer, filed a petition under 28 U.S.C. § 2254 challenging a conviction involving several misdemeanors. The respondent moved to dismiss because Nilsen had not exhausted the available state-court remedies.
Nilsen was found guilty of several misdemeanors on May 25, 2018. The appellate division of the Lake County Superior Court affirmed the judgment on March 25, 2019. Nilsen did not ask that court to certify the case for transfer to the California Court of Appeal, and he did not directly ask the Court of Appeal to accept the transfer.
Nilsen later filed a state habeas petition in the California Court of Appeal, which was denied, followed by a petition in the California Supreme Court, which was also denied. The court noted that, even assuming the California Supreme Court petition could exhaust misdemeanor claims, it presented a different claim from the two claims in the federal petition.
Court’s analysis
Federal law generally requires a state prisoner to present each federal habeas claim to the highest appropriate state court before seeking federal relief. For California misdemeanor convictions, the court explained that the relevant appellate path includes the superior court’s appellate division and, if applicable, a request to transfer the case to the California Court of Appeal. Under the cited authority, a misdemeanor claim is not exhausted when the petitioner fails to seek that transfer.
The court found that Nilsen’s claims were unexhausted because he did not pursue either available transfer procedure. Nilsen did not dispute that he failed to follow the required exhaustion procedures for the claims in the federal petition. His argument that a claim dismissed during screening had been exhausted did not change the result because that claim was no longer part of the petition. The court also stated that Nilsen’s argument based on alleged violations of state law and state procedures did not state a federal claim.
Ruling
The court granted the respondent’s motion to dismiss. The provided opinion text is truncated in the conclusion immediately after stating, “The petition is,” so it does not display the rest of that sentence. The court ordered the clerk to substitute Rob Howe, identified as Lake County’s Chief Probation Officer, as respondent. The court denied a certificate of appealability because reasonable jurists would not find its procedural or underlying-claim findings debatable.
Classification basis
This is a procedural order. The court dismissed on the threshold ground that the claims had not been exhausted and did not decide the underlying constitutional claims on their merits.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.