The opinion of the court was delivered by: Gary A. Feess United States District Judge
ORDER: DISMISSING PETITION WITHOUT PREJUDICE; AND DENYING CERTIFICATE OF APPEALABILITY
On July 6, 2010, Petitioner, a California prisoner, filed a habeas petition in this Court pursuant to 28 U.S.C. § 2254 ("Petition"). Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides that a petition for writ of habeas corpus "must" be summarily dismissed "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Here, it plainly appears that the Petition is unexhausted.*fn1 Therefore, the instant Petition must be dismissed without prejudice.
Federal courts may not grant habeas relief to a person held in state custody unless the petitioner has exhausted his available state court remedies as to each of the issues presented. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203 (1982); Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005)("We may review the merits of Petitioner's habeas petition only if he exhausted state court remedies."). "[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before these claims are presented to the federal courts." O'Sullivan v. Boeckerl, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732 (1999)(emphasis added); see also Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349 (2004)(in order to give the State the chance to pass upon and resolve violations of his federal rights, a state prisoner must exhaust his available state remedies before seeking federal habeas relief). A state prisoner seeking relief with respect to a California conviction or sentence is required to "fairly present" his federal claims to the California Supreme Court. See id. at 29, 124 S.Ct. at 1349 (a state prisoner must fairly present his claim to a state supreme court having the power of discretionary review); Keating v. Hood, 133 F.3d 1240, 1242 (9th Cir. 1998).
Petitioner alleges that his state appeal concluded on May 10, 2006, when the California Supreme Court denied review. (Petition at 3.) Petitioner further alleges that: he has not filed any state habeas petition; and the single ground for relief alleged in the Petition has not been raised in either the California Court of Appeal or the California Supreme Court.*fn2 (Petition at 3, 5, 7.) Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has reviewed, and takes judicial notice of, the electronic docket for the California Supreme Court,*fn3 which shows that the sole state high court proceeding filed by Petitioner was his petition for review filed on direct appeal (Case No. S141382), which was denied on May 10, 2006.
The Petition, thus, is fully unexhausted. As a result, Petitioner's motion for a stay and abeyance, which is appended to the Petition, cannot be granted.*fn4 Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).
Petitioner has not given the state high court a chance to rule on his claim alleged in the Petition and, thus, has failed to exhaust his available state court remedies. Accordingly, the Petition must be dismissed without prejudice. Rose, 455 U.S. at 522, 102 S.Ct. at 1205. Once Petitioner does properly exhaust his claim, he may file a new habeas petition in this Court.*fn5
For the foregoing reasons, IT IS ORDERED that: the Petition is dismissed without prejudice; and Judgment shall be entered dismissing this action without prejudice for failure to exhaust available state remedies.
In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has considered whether a certificate of appealability is warranted in this case. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 1604 (2000). The Court concludes that a certificate of appealability is unwarranted and, thus, a certificate of appealability is DENIED.
MARGARET A. NAGLE UNITED STATES ...