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Carle v. Cash

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION


July 29, 2010

ERIC BRENDAN CARLE, PETITIONER,
v.
BRENDA M. CASH, RESPONDENT.

The opinion of the court was delivered by: John F. Walter United States District Judge

MEMORANDUM AND ORDER DISMISSING PETITION WITHOUT PREJUDICE

Petitioner filed this petition for a writ of habeas corpus, presenting three claims for relief. [Petition at 5-6]. On June 2, 2010, the Court issued an order explaining that it appeared that petitioner had failed to exhaust Grounds Two and Three of the petition by presenting them to the California Supreme Court. Because the petition appeared to be mixed, petitioner was provided four options:

(1) filing a notice of exhaustion, (2) withdrawing the unexhausted claims and proceeding on the basis of the remaining claim, (3) dismissing the petition without prejudice, or (4) seeking a stay of the petition so that he could exhaust his state remedies. In addition, the Court advised petitioner that failure to respond to the order would be deemed his consent to dismissal of the petition without prejudice. Petitioner's response to the order was due on June 23, 2010. As of the date of this memorandum and order, petitioner has failed to either file a response or request additional time within which to do so.

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A); see Duncan v. Henry, 513 U.S. 364, 365 (1995)(per curiam). The exhaustion requirement is satisfied when the substance of a petitioner's federal claim has been fairly presented to the state's highest court. Baldwin v. Reese, 541 U.S. 27, 29 (2004); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008).

As explained in the June 2, 2010 order, petitioner presented only one claim to the California Supreme Court in his petition for review. [Petition at 2-3]. Grounds Two and Three of this petition were not included in petitioner's petition for review filed in the California Supreme Court, and petitioner did not file any other petition with the highest state court. Accordingly, petitioner has failed to exhaust his state remedies, and the petition is dismissed without prejudice to its refiling after petitioner exhausts his state remedies.

IT IS SO ORDERED.

20100729

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