The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge
Petitioner Juan Carlos Ayala-Sanchez is a former state prisoner, represented by counsel, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254, based on alleged violations of his federal constitutional rights. Petitioner has been deported and now resides in Mexico. (Doc. No. 22 at ¶VI).
Respondent, Larry Scribner, the Warden of Calipatria State Prison, filed a motion to dismiss Petitioner's application on November 28, 2007. Respondent maintains that the petition should be dismissed without consideration of the merits because Petitioner failed to exhaust state judicial remedies and has failed to state a claim. Petitioner opposes the motion. Respondent's motion to dismiss is granted and the petition is dismissed on the ground that Petitioner has failed to exhaust state judicial remedies.
On July 27, 2004, Petitioner pleaded guilty to two counts of lewd or lascivious acts with a child under the age of 14 years in violation of California Penal Code § 288(a). Petitioner was sentenced to two three-year terms in state prison, to run concurrently.
On October 5, 2005, Petitioner's judgment and conviction were affirmed by the California Court of Appeal, Third Appellate District. Petitioner did not file a petition for review with the California Supreme Court.
On April 17, 2006, Petitioner, proceeding pro se, filed the instant petition for a writ of habeas corpus. (Doc. No. 1). Counsel was appointed the following month. (Doc. No. 6).
On November 19, 2006, Petitioner filed a first amended petition in the instant matter (Doc. No. 22) and moved for an abeyance of the proceedings pending state court exhaustion. (Doc. No. 23). This Court denied the abeyance motion as moot and directed Petitioner to advise the court of the basis of Petitioner's removal or deportation. (Doc. No. 25). This Court recommended dismissal of the petition and Petitioner filed objections. (Doc. Nos. 25 and 27, respectively). This Court vacated its earlier findings and ordered Respondent to file and answer or otherwise respond to Petitioner's first amended petition. (Doc. No. 31).
On November 20, 2006, Petitioner filed a petition for a writ of habeas corpus with the California Supreme Court based on the same allegations contained in Petitioner's first amended federal petition. (Doc. No. 34, Exh. A). On January 17, 2007, the California Supreme Court denied the petition, citing as grounds "See In re Wessley W. (1981) 125 Cal.App.3d 240, 246; In re Swain (1949) 34 Cal.2d 300, 304; ...