The opinion of the court was delivered by: Philip S. Gutierrez United States District Judge
[PROPOSED] ORDER DISMISSING PETITION WITHOUT PREJUDICE
On September 15, 2010, Petitioner filed a Petition for Writ of Habeas Corpus ("Petition"), seeking to challenge a June 2010 state conviction and four-year sentence that followed. (Petition at 2.) Although the Petition is difficult to decipher, it appears that Petitioner is contending that the state court should not have relied on a prior conviction to enhance his sentence. (Petition, Attached Statement of Facts.) In screening the Petition, it was clear to the Court that Petitioner had not exhausted this claim by presenting it to the state supreme court. As a result, on September 20, 2010, the Court ordered Petitioner to show cause as to why the Petition should not be dismissed for failure to exhaust. On October 25, 2010, the Court dismissed the Petition without prejudice.
Upon learning that Petitioner did not receive the September 20, 2010 Order to Show Cause, the Court vacated its order and judgment dismissing the Petition. On November 18, 2010, the Court once again ordered Petitioner to show cause as to why the Petition should not be dismissed for failure to exhaust his claim. Petitioner has not responded to the Court's order. A check of the state court website shows that Petitioner has a habeas corpus petition (S186972) pending before the California Supreme Court, but that the court has yet to rule on it.
As a matter of comity between state and federal courts, a federal court generally will not address the merits of a habeas corpus petition unless the petitioner has first exhausted his state remedies. Rose v. Lundy, 455 U.S. 509, 518-22 (1982). Indeed, Congress has provided that this Court cannot grant a habeas petition unless the claims have been exhausted or there is no available state corrective process. See 28 U.S.C. § 2254(b)(1). To exhaust state remedies, a petitioner must fairly present his contentions to the state courts, and the highest court of the state must dispose of them on the merits. O'Sullivan v. Boerckel, 526 U.S. 838, 842, 844-45 (1999). A district court may raise a failure to exhaust sua sponte. Stone v. San Francisco, 968 F.2d 850, 856 (9th Cir. 1992.)
In this case it is clear that Petitioner's claim is not exhausted because the state supreme court has yet to rule on it. As such, he cannot pursue his claim in this court. Nor is he entitled to a "stay and abey"--allowing him to stay his case in this court while he waits for the supreme court to rule on his claim--because he has not raised any exhausted claims along with his unexhausted one. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). In short, because the only claim before the Court is unexhausted, the Petition is subject to dismissal. Id. ("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."). Accordingly, the Petition is hereby dismissed without prejudice.*fn1
Presented by: PATRICK J. WALSH UNITED STATES ...