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October 6, 2005.

LETITIA BRENG ROSE a/k/a Tish Rose, Petitioner,
J MICHAEL HOGAN, SR, Deputy County Counsel Monterey County, Public Guardian and THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondent.

The opinion of the court was delivered by: VAUGHN WALKER, District Judge


On October 1, 2004, a petition filed by Gail Sutton, the adult daughter of the petitioner named on the caption, Letitia Breng Rose, was filed with this court after transfer from two other federal district courts. The stated purpose of the petition was "to have [Ms Sutton's mother released from the custody of the State of California and to go to the State of New York so that she can be with her family." Doc # 1, Petition at 2. See order filed October 29, 2004 (Doc # 3). This court dismissed the petition without prejudice for failure to exhaust state remedies. Id. The court did not reach two issues presented by the petition: (1) whether federal habeas relief was available for an individual committed to a nursing home by a public guardian; and (2) whether Ms Sutton could file on behalf of Mrs Rose as a "next friend" pursuant to 28 USC § 2242.

On July 20, 2005, Ms Sutton, appearing in propria persona, filed an "emergency request for leave to move for reconsideration" of the order dismissing the petition. Doc # 4. Ms Sutton describes further procedural steps taken following the October 29, 2004 dismissal of the petition and attaches documents and photographs concerning Mrs Rose's situation. Id. She also states more clearly that the objective of the petition is to obtain the release of Mrs Rose from a private nursing home, the Victorian at Carmel-by-the-Sea, to which she had allegedly been committed by the public guardian for the County of Monterey under the authority of a court-ordered conservatorship. Id. For these reasons, Ms Sutton's filing is more properly styled as an amended petition for habeas corpus. Because Ms Sutton is in propria persona and the court must construe her papers liberally, the court construes the motion for leave to file motion for reconsideration as, instead, an amended petition for habeas corpus under 28 USC § 2254. For the reasons stated herein, the amended petition is DISMISSED, without leave to amend.


  As stated in the court's October 29 order, prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 USC § 2254(b), (c); Rose v. Lundy, 455 US 509, 515-16 (1982); Duckworth v. Serrano, 454 US 1, 3 (1981); McNeeley v. Arave, 842 F2d 230, 231 (9th Cir 1988). The state's highest court must be given an opportunity to rule on the claims even if review is discretionary. See O'Sullivan v. Boerckel, 526 US 838, 845 (1999) (petitioner must invoke "one complete round of the State's established appellate review process").

  Because the original petition openly acknowledged the failure to exhaust state remedies ("Gail Sutton did not appeal to any higher State Court in the State of California because she did not have the resources to pursue same," Doc # 1, ¶ 24), the court dismissed the petition. The court has examined Ms Sutton's new filing and determined, for the reasons stated below, that state remedies have still not been exhausted.

  In her papers, Ms Sutton recites the steps she and her husband John Sutton took in the California courts after the dismissal of the original petition by this court, Doc # 3 at 2: they petitioned twice to terminate the conservatorship; they filed a writ of mandate in the Court of Appeal of the State of California, Sixth Appellate District, "dismissed and Suttons' request to file in forma pauperis denied"; and they filed a petition for a writ of habeas corpus in the California Supreme Court, which was rejected for filing by the clerk of that court. Doc # 4 at 2-3. Ms Sutton does not submit with her petition either of the orders of the superior court to which she refers. As Exhibit C to the petition, Ms Sutton attaches a copy of an order of the Court of Appeal dated May 12, 2005 which states: "The petitioners having failed to submit the required filing fee, the petition for writ of mandate filed April 18, 2005 is hereby stricken." The order makes no reference to an in forma pauperis application, nor is any order relating to such an application attached to the petition. As Exhibit D to the petition, Ms Sutton includes a letter dated May 26, 2005 from the clerk of the California Supreme Court stating: "Returned unfiled is the petition for writ of habeas corpus you attempted to file on behalf of Letitia Rose. California law does not allow you to file on behalf of another party unless you are an attorney." Ms Sutton submits no other evidence regarding Ms Sutton's efforts on behalf of Mrs Rose in the state courts.

  The exhaustion requirement is satisfied only if the federal claim: (1) has been "fairly presented" to the state courts, Picard v. Connor, 404 US 270, 275 (1971), Crotts v. Smith, 73 F3d 861, 865 (9th Cir. 1996); or (2) no state remedy remains available, see Johnson v. Zenon, 88 F3d 828, 829 (9th Cir 1996). Peterson v. Lampert, 319 F3d 1153, 1155-56 (9th Cir 2003) (en banc). It does not constitute "fair presentation" if the claim is raised by a procedural method which makes it unlikely that the claim will be considered on the merits. See Castille v. Peoples, 489 US 346, 351 (1989) (presentation by way of petition to state supreme court for allocatur, which under state procedure may be considered only when "there are special and important reasons therefor," insufficient to exhaust); Casey, 386 F3d at 917 (federal claims not fairly presented when petitioner "raised them for the first and only time upon petitioning for discretionary review to the Washington State Supreme Court"); Kibler v. Walters, 220 F 3d 1151, 1153 (9th Cir 2000) (where state habeas petitioner failed to satisfy procedural requirements for presentation of his claims to Washington Supreme Court, he failed to fairly present his claims for purposes of federal habeas corpus review).

  It was incumbent on Ms Sutton to allege in her amended petition that she has met the requirements for exhaustion and, where appropriate, to attach evidence in support of that allegation. The few attachments to the amended petition suggest that Ms Sutton did not "fairly present" all available state courts with an opportunity to rule on the merits. The petition states that the superior court issued additional orders, but does not explain why Ms Sutton did not file an appeal of those orders. Filing a petition for writ of mandamus in the court of appeal unaccompanied by a filing fee or valid in forma pauperis application does not constitute fair presentation of claims to that court.

  Moreover, to establish exhaustion of state remedies, a habeas petitioner must have apprised the California courts that she was making a claim under the United States Constitution. Castillo v. McFadden, 399 F3d 993, 999 (9th Cir 2005). In so doing, she must describe "both the operative facts and the federal legal theory on which [her] claim is based," id, citing Kelly v. Small, 315 F3d 1063, 1066 (9th Cir 2003), and must have characterized the claims raised in state proceedings "specifically as federal claims," Castillo at 999, citing Lyons v. Crawford, 232 F3d 666, 670 (2000). "Mere general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, do not establish exhaustion." Hiivala v. Wood, 195 F3d 1098, 1106 (9th Cir 1999).

  The original petition alleged three grounds for relief under the United States Constitution, but specifically stated "[t]he grounds for relief raised in this petition have not been presented to the highest State Court in California having jurisdiction," Doc # 1 at 7, ¶ 31 and "[t]he grounds for relief set forth in this petition have not been presented in any State or Federal court." Id at ¶ 32. Ms Sutton's amended petition does not allege or in any way suggest that she presented her Constitutional claims on behalf of Mrs Rose to the state courts.

  Because Ms Sutton's amended pleading fails to allege exhaustion of state remedies, it must be, and hereby is, DISMISSED.


  In its previous order, the court noted that there is little or no precedent for the use of the writ of habeas corpus to challenge the confinement of an individual who has been adjudicated incompetent. Ms Sutton's amended petition sets forth additional facts that plainly establish that the writ of habeas corpus is ...

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