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Thao v. Swarthouth

January 29, 2010

CHARLES CHONG THAO, PETITIONER,
v.
WARDEN SWARTHOUTH, RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with the court's December 31, 2009 order, petitioner has paid the filing fee.

PRELIMINARY SCREENING

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . ." Rule 4, Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus at several stages of a case, including "summary dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the answer and petition are considered; or a dismissal after consideration of the pleadings and an expanded record."

BACKGROUND

On December 22, 2009, petitioner commenced this action by filing a petition for writ of habeas corpus, challenging his 2007 judgment of conviction for robbery and kidnapping entered by the Sacramento County Superior Court. In his petition, petitioner raises several claims of ineffective assistance of counsel as well as a claim of actual innocence. According to the petition, petitioner appealed his conviction to the California Court of Appeal for the Third Appellate District and the California Supreme Court. However, it appears that he did not raise any of the claims set forth in his pending federal petition on appeal or in any subsequent petitions for post-conviction relief to the California Supreme Court. (Pet. at 2, 5 & Supp.)

Recognizing that this court cannot grant relief on unexhausted claims, petitioner has filed a motion for a stay and abeyance. Therein, he argues that he has diligently pursued his claims, that his claims have merit, and that his motion for a stay and abeyance is not for purposes of delay or abuse of the process. In this regard, petitioner maintains that he has demonstrated good cause for a stay and abeyance under Rhines v. Weber, 544 U.S. 269 (2005). (Pet'r's Mot. for Stay & Abey. at 1-5.)

ANALYSIS

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).

In this case, it appears that petitioner has not presented any of the claims pending in his federal petition to the California Supreme Court. Although petitioner has filed a motion for a stay and abeyance in order to exhaust his claims in state court, petitioner is advised that a stay and abeyance is not available where, as here, the petition is wholly unexhausted. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). In Raspberry, the Ninth Circuit explained:

District courts have the discretion to hold a mixed petition in abeyance pending exhaustion of the unexhausted claims. We decline to extend that rule to the situation where the original habeas petition contained only unexhausted claims . . . . Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust.

Id. at 1154. See also, e.g., Dotson v. Uribe, No. CV 09-6115-FMC (PLA), 2009 WL 4885200, at *4 (C.D. Cal. Dec. 14, 2009) (denying a motion for a stay and abeyance because the federal petition contained only unexhausted claims); Brown v. Dexter, No. CV 08-1119-SGL (VBK), 2008 WL 4384181, at *4 (C.D. Cal. Aug. 21, 2008) (same).

Here, the court is not presented with a mixed petition. Rather, it appears that the instant petition contains only unexhausted claims. Accordingly, the court concludes that petitioner's motion for a stay and abeyance should be denied, and this action should be dismissed without prejudice due to petitioner's failure to exhaust state court remedies.

CONCLUSION

IT IS HEREBY ...


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