(1) OPINION AND ORDER ON A PETITION FOR HABEAS CORPUS; AND (2) ORDER DENYING CERTIFICATE OF APPEALABILITY
On April 9, 2010, in the United States District Court for the Southern District of California, petitioner Theresa Annette Torricellas, aka Nancy Montgomery, a state inmate proceeding pro se, filed a habeas corpus petition under 28 U.S.C. § 2254, challenging the California Board of Parole Hearings' 2008 denial of parole to petitioner, and a motion for stay and abeyance of the proceeding so petitioner can exhaust her claim in state court. On April 16, 2010, the petition and motion were transferred to this district court.
A California prisoner seeking federal habeas corpus relief must exhaust her claims before the California courts prior to filing her petition for a writ of habeas corpus in federal court. 28 U.S.C. §§ 2254(b) and (c); Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed. 2d 64 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1738, 144 L.Ed. 2d 1 (1999); Peterson v. Lampert, 319 F.3d 1153, 1155 (9th Cir. 2003) (en banc). "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." Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed. 2d 379 (1982).
Here, petitioner acknowledges her claim has not been exhausted before the California Supreme Court, Petition at 6, and she seeks an order staying this action while she exhausts her claim before the California Supreme Court, where she recently filed a habeas petition. See Declaration of Theresa Torricellas ¶¶ 15-17. Thus, the pending petition is completely unexhausted and must be dismissed without prejudice. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to the petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust." (citing Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003)); see also Muhammad v. Close, 540 U.S. 749, 751, 124 S.Ct. 1303, 1304, 158 L.Ed. 2d 32 (2004) (per curiam) ("Federal petitions for habeas corpus may be granted only after avenues of relief have been exhausted."); Davis v. Silva, 511 F.3d 1005, 1008 (9th Cir. 2008) (same).
Although district courts have the authority to stay a mixed or completely exhausted habeas petition, see Rhines v. Weber, 544 U.S. 269, 276-77, 125 S.Ct. 1528, 1534-35, 161 L.Ed. 2d 440 (2005); King v. Ryan, 564 F.3d 1133, 1135 (9th Cir.), cert. denied, 130 S.Ct. 214 (2009), "that rule" has not been extended "to the situation where the original habeas petition contain[s] only unexhausted claims. . . ." Rasberry, 448 F.3d at 1154; see also Davis v. Adams, 2010 WL 1408290, *2 (C.D. Cal.) ("The Court cannot stay a completely unexhausted petition."), adopted by, 2010 WL 1408292 (C.D. Cal.); Burns v. Marshall, 2010 WL 1233779, *2 (C.D. Cal.) ("Although this Court has the power to stay a 'mixed' petition, or a fully exhausted petition, it does not have the authority to stay a petition that is completely unexhausted." (citations omitted)), adopted by, 2010 WL 1233777 (C.D. Cal.). Therefore, petitioner's request to stay this proceeding must be denied. Jones v. McDaniel, 320 Fed. Appx. 784, 786 (9th Cir.), cert. denied, 130 S.Ct. 210 (2009); Rasberry, 448 F.3d at 1154; see also Jiminez, 276 F.3d at 481 ("[T]he district court was 'obliged to dismiss immediately,' as the petition contained no exhausted claims" (citation omitted)).
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 exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition . . . ," and Local Rule 72-3.2 similarly provides that "[t]he Magistrate Judge promptly shall examine a petition for writ of habeas corpus, and if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief, the Magistrate Judge may prepare a proposed order for summary dismissal and submit it and a proposed judgment to the District Judge." Thus, this action should be summarily dismissed without prejudice. Rasberry, 448 F.3d at 1154; Jiminez, 276 F.3d at 481.
Further, this Court finds any appeal would not be taken in good faith, and petitioner has not made a substantial showing that this Court is not correct in its procedural ruling, and that petitioner has been denied a constitutional right, for the reasons set forth herein. Accordingly, a certificate of appealability should not issue under 28 U.S.C. § 2253(c)(2) and Fed. R. App. P. 22(b). Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1604, 146 L.Ed. 2d 542 (2000); Cooper v. Calderon, 308 F.3d 1020, 1021-22, n.2 (9th Cir. 2002), cert. denied, 538 U.S. 984 (2003).
IT IS HEREBY ORDERED that petitioner's motion to stay this action be DENIED.
IT IS FURTHER ORDERED that Judgment be entered DISMISSING WITHOUT PREJUDICE the petition for writ of habeas corpus and action.
IT IS STILL FURTHER ORDERED that a Certificate of Appealability be DENIED.
DEAN D. PREGERSON UNITED STATES DISTRICT JUDGE
PRESENTED BY: DATE: May 20, 2010
ROSALYN M. CHAPMAN UNITED STATES ...