IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 12, 2008
JAVIER VIRELAS LOPEZ, PETITIONER,
T. FELKER, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondents' motion to dismiss (Doc. 10) for failure to exhaust. Petitioner has not filed an opposition.
Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required before the federal court can grant a claim presented in a habeas corpus case. See Rose v. Lundy, 455 U.S. 509 (1982); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler, 336 F.3d 839 (9th Cir. 2003). "A petitioner may satisfy the exhaustion requirement in two ways: (1) by providing the highest state court with an opportunity to rule on the merits of the claim . . .; or (2) by showing that at the time the petitioner filed the habeas petition in federal court no state remedies are available to the petitioner and the petitioner has not deliberately by-passed the state remedies." Batchelor v. Cupp , 693 F.2d 859, 862 (9th Cir. 1982) (citations omitted). The exhaustion doctrine is based on a policy of federal and state comity, designed to give state courts the initial opportunity to correct alleged constitutional deprivations. See Picard v. Connor, 404 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518. Respondents argue:
In this case, none of Petitioner's claims has been fairly presented to the California Supreme Court. Petitioner did not file a petition for review following the Court of Appeal's rejection of his claims of insufficient evidence to support the gang enhancements. Nor did he file a state habeas petition in the California Supreme Court containing those or any other claims. Indeed, most of the claims raised in the Petition have not been presented previously to any state court, including Petitioner's claims of insufficient evidence of attempted murder, prosecutorial misconduct, and certain claims of ineffective assistance of counsel.
The forgoing is consistent with the information provided by petitioner in the petition, in which he indicates that he did not seek direct review beyond the California Court of Appeal and that his only state habeas petition was filed in the Sacramento County Superior Court. As both petitioner and respondents state, none of petitioner's claims have been presented to the California Supreme Court. Therefore, the claims are unexhausted and this petition should be dismissed.
Based on the foregoing, the undersigned recommends that respondents' unopposed motion to dismiss (Doc. 10) be granted.
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 20 days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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