The opinion of the court was delivered by: Honorable Andrew J. Guilford United States District Judge
ORDER DISMISSING FIRST AMENDED PETITION WITHOUT PREJUDICE
On July 20, 2011, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody, pursuant to 28 U.S.C. § 2254. Upon reviewing the Petition, the Magistrate Judge concluded that amendment was necessary because (1) petitioner failed to clearly indicate that the Petition contained exhausted claims, and (2) petitioner failed to clearly explain his grounds for habeas relief as well as the facts supporting each ground. On July 27, 2011, the Magistrate Judge issued an order dismissing the Petition with leave to amend to correct the foregoing deficiencies.
On August 15, 2011, petitioner filed a First Amended Petition ("FAP"). Petitioner states in the FAP that he was convicted of a "DUI" on July 5, 2011, and is currently serving a two-year sentence at Wasco State Prison in Wasco, California. (FAP at 2). The Court has reviewed the FAP and concludes that petitioner has again failed to demonstrate that his claims are exhausted.*fn1
As a matter of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in the petition. Rose v. Lundy, 455 U.S. 509, 518-22, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The habeas statute explicitly provides that a habeas petition brought by a person in state custody "shall not be granted unless it appears that -- (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). Moreover, if the exhaustion requirement is to be waived, it must be waived expressly by the state, through counsel. See 28 U.S.C. § 2254(b)(3).
Exhaustion requires that petitioner's contentions be fairly presented to the state supreme court even if that court's review is discretionary. O'Sullivan v. Boerckel, 526 U.S. 838, 845-47, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); James v. Giles, 221 F.3d 1074, 1077, n.3 (9th Cir. 2000). Petitioner must give the state courts "one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process" in order to exhaust his claims. O'Sullivan, 526 U.S. at 845. A claim has not been fairly presented unless the prisoner has described in the state court proceedings both the operative facts and the federal legal theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996); Bland v. California Dept of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994), overruled on other grounds by Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000). Petitioner has the burden of demonstrating that he has exhausted available state remedies. See, e.g., Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982).
Here, petitioner indicates that he has filed a direct appeal in the California Court of Appeal, but does not provide the case number. As for the result of the appeal, petitioner indicates that he has received "no answer." (FAP at 2-3). Petitioner also indicates that he filed a petition for review in the California Supreme Court, but does not provide a case number. In the section of the form that asks for the grounds raised in the petition for review, petitioner states that he wrote a letter to the California Supreme Court. As for the date of decision, petitioner states that he has received "no answer." (FAP at 3). In the section of the form that asks if petitioner has previously filed any state habeas petitions, petitioner gives the case number of the instant federal habeas proceeding, and states that he sent letters to the "Central Court Santa Ana" but has received "no answer." (FAP at 3).
Based on the above, it appears that petitioner did not file a direct appeal in the California Court of Appeal or a petition for review in the California Supreme Court, but rather simply sent letters to the respective courts.*fn2 There is no indication in the record how the California courts construed petitioner's letters, or what information was contained in their contents. Thus, there is no indication based on the information provided in the FAP that petitioner has fulfilled the exhaustion requirement. This is especially true as petitioner states that he was convicted and sentenced on July 5, 2011, less than two months ago. (FAP at 2). It is difficult to imagine that he was able to exhaust his state court remedies in connection with his conviction and sentence in that period of time. Accordingly, the Court concludes that petitioner has failed to demonstrate that he has exhausted available state remedies with respect to any of his claims.*fn3
Because petitioner has already been given the opportunity by way of amendment to demonstrate to the Court that he has fulfilled the exhaustion requirement, yet failed to provide any information in the FAP showing that he in fact exhausted his present claims by filing a direct appeal, petition for review, or any state collateral challenge, the Court finds that dismissal of the FAP without prejudice is appropriate.
IT IS THEREFORE ORDERED that the First Amended Petition is dismissed without prejudice for failure to exhaust available state remedies.
Presented by: PAUL L. ABRAMS UNITED STATES ...