IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 10, 2009
JEFFREY NATHAN COSS, PETITIONER,
PLACER COUNTY COURT, RESPONDENT.
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, who has been convicted of several misdemeanors, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has submitted the filing fee.
The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3).*fn1 A waiver of exhaustion, thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986).
After reviewing the petition for habeas corpus, the court finds that petitioner has failed to exhaust state court remedies: petitioner concedes that his claims have not been presented to the California Supreme Court. He argues, however, that after the Appellate Division of the Placer County Superior Court denied certification of the case to the Court of Appeal and after the Court of Appeal denied his habeas petition, he had no further state remedies to pursue.
The Ninth Circuit has rejected this argument. In Larche v. Simons, 53 F.3d 1068 (9th Cir. 1995), the petitioner, who had also been convicted of a misdemeanor, argued that he was not required to present his claims to the California Supreme Court before filing his federal habeas petition. The court considered the question "whether a misdemeanor appellant, whose direct appeal is exhausted before reaching the state's highest court, must then appeal to that court by means of habeas proceedings in order to exhaust his claims for federal habeas corpus purposes," and held that he must. Id. at 1071. The court explained that because the "overriding principle requiring exhaustion of state remedies is comity," the state Supreme Court must be given an opportunity to consider constitutional claims even on discretionary review. Id. It then noted that even though a misdemeanant cannot appeal directly to the California Supreme Court, he may invoke that court's original jurisdiction over habeas petitions. Id.
Because the petitioner in this case has conceded he has not sought habeas relief in the California Supreme court, his claims are not exhausted and the petition should be dismissed without prejudice.*fn2
Good cause appearing, IT IS HEREBY ORDERED that:
The Clerk of the Court is directed to serve a copy of these findings and recommendations together with a copy of the petition filed in the instant case on the Attorney General of the State of California.
IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be dismissed for failure to exhaust state remedies.
These findings and recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).