The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER REGARDING RESPONDENT'S MOTION TO DISMISS PETITION
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).
Following a jury trial, Petitioner was convicted of the following four offenses: assault by means of force likely to produce great bodily injury; corporal injury to a spouse/cohabitant, with allegations of two prior convictions of corporal injury; pimping; and, disobeying a domestic relations order. Petitioner admitted a prior "strike" felony conviction. (CT 161, 163-166.) Petitioner was sentenced to sixteen years imprisonment. (CT 319, 324-325.)
Petitioner filed a timely notice of appeal. On June 23, 2008, the California Court of Appeal, Fifth Appellate District affirmed Petitioner's conviction, but remanded the case to the trial court for resentencing because the court failed to pronounce sentence on one count. (Lodged Doc. No. 4.)
On July 8, 2008, Petitioner filed a petition for review in the California Supreme Court. (Lodged Doc. No. 5.) The petition was denied on October 1, 2008. (Lodged Doc. No. 6.)
Petitioner filed the instant federal petition for writ of habeas corpus on December 3, 2009. (Court Doc. 1.) On February 23, 2010, Respondent filed a motion to dismiss the petition for failure to exhaust one of the claims. (Court Doc. 11.) On March 15, 2010, Petitioner filed a response to Respondent's motion. (Court Doc. 13.)
I. Procedural Grounds for Motion to Dismiss
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 . . . ." The Advisory Committee Notes to Rule 5 of the Rules Governing Section 2254 Cases state that "an alleged failure to exhaust state remedies may be raised by the attorney general, thus avoiding the necessity of a formal answer as to that ground." The Ninth Circuit has referred to a respondent's motion to dismiss on the ground that the petitioner failed to exhaust state remedies as a request for the Court to dismiss under Rule 4 of the Rules Governing Section 2254 Cases. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (1991); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982). Based on the Rules Governing Section 2254 Cases and case law, the Court will review Respondent's motion for dismissal pursuant to its authority under Rule 4.
II. Exhaustion of State Remedies
A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-55 (1991); ...