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McGill v. State

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


March 9, 2009

DESMOND MCGILL, PETITIONER,
v.
STATE OF CALIFORNIA,*FN1 RESPONDENT.

The opinion of the court was delivered by: Valerie Baker Fairbank United States District Judge

OPINION AND ORDER ON A PETITION FOR HABEAS CORPUS

On March 5, 2009, petitioner Desmond McGill, a person in state custody proceeding pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254,*fn2 challenging his conviction and sentence for carjacking and robbery in Los Angeles Superior Court case no. SA065045. Petition at 2. The petition shows on its face that petitioner did not timely appeal his state court judgment, and thus, did not seek review in the California Supreme Court. Petition at 2-3. Further, petitioner has brought habeas corpus petitions only in the Superior Court, and has not sought habeas relief in the California Supreme Court. Petition at 4.

DISCUSSION

A state prisoner must exhaust his state court remedies before petitioning for a writ of habeas corpus in federal court. 28 U.S.C. §§ 2254(b) and (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842-43, 119 S.Ct. 1728, 1731, 144 L.Ed. 2d 1 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201-02, 71 L.Ed. 2d 379 (1982); Calderon v. United States Dist. Court (Taylor), 134 F.3d 981, 984-85 (9th Cir.), cert. denied, 119 S.Ct. 274 (1998). "The exhaustion-of-state-remedies doctrine, now codified [at] 28 U.S.C. §§ 2254(b) and (c), reflects a policy of federal-state comity, an accommodation of our federal system designed to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed. 2d 438 (1971) (internal quotation marks, citations and footnote omitted); O'Sullivan, 528 U.S. at 844-45, 119 S.Ct. at 1732; Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996). "The exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Lundy, 455 U.S. at 518, 102 S.Ct. at 1203.

Here, petitioner did not petition the California Supreme Court for review and has not petitioned the California Supreme Court for collateral relief. Since petitioner's claims have not been exhausted in the state courts, the pending habeas petition must be dismissed without prejudice. Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-55, 115 L.Ed. 2d 640 (1991); Lundy, 455 U.S. at 522, 102 S.Ct. at 1205.

Rule 4 of the Rules Governing Section 2254 Cases in the United States Courts provides that "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." The instant petition shows that petitioner has not exhausted his state court remedies regarding the claims in the pending petition; thus, the petition must be dismissed without prejudice.

ORDER

IT IS ORDERED that Judgment be entered DISMISSING without prejudice the petition for writ of habeas corpus.

IT IS FURTHER ORDERED that the Clerk of Court shall notify petitioner of the dismissal without prejudice.

ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE


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