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Dewayne Kimble v. People


October 25, 2011


The opinion of the court was delivered by: Dean D. Pregerson United States District Judge


On October 12, 2011, Petitioner, a California prisoner, filed a habeas petition in this Court pursuant to 28 U.S.C. § 2254 ("Petition"). The Petition consists only of four pages, which correspond to Pages 1, 2, 3, and 8 of a Section 2254 petition form previously used in this district. The Petition fails to indicate what federal habeas claims Petitioner seeks to raise and does not contain complete information regarding what appeal and/or post-conviction proceedings, if any, Petitioner has pursued. In addition, the Petition improperly names "People" as the Respondent in this action, rather than the Warden of the prison in which Petitioner is incarcerated (North Kern State Prison).

Accordingly, the Petition is substantially defective under Rule 2(a) and (c) of the Rules Governing Section 2254 Cases in the United States District Court, and its dismissal is warranted on that procedural ground. However, the Petition is subject to a more fundamental defect that cannot be corrected by amendment. 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. Therefore, the*fn1 Petition must be dismissed without prejudice.


The Petition alleges that, on "7/5/0-29 [sic]," Petitioner was convicted of two counts of murder, pursuant to a guilty plea in the "Torrance Court" (presumably, the Torrance branch of the Los Angeles Superior Court). (Petition at 3.) The Petition further alleges that, on July 20, 2011, Petitioner was sentenced to "life," and he has not appealed his conviction and/or sentence. (Id.) The Petition also alleges that Petitioner does not have any habeas or other post-conviction attack on his conviction and/or sentence pending in any state or federal court. (Petition at 4.)

The Court may raise exhaustion problems sua sponte. Boyd v. Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has reviewed, and takes judicial notice of, the electronic dockets for the California Court of Appeal, Second Appellate District, and the California Supreme Court. Those judicially-noticed records show that*fn2 Petitioner has not filed any action in either state court, whether appellate, habeas, or otherwise.


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 those claims are presented to the federal courts." O'Sullivan v. Boerckel, 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).

To satisfy the exhaustion requirement, a petitioner must "fairly present" his federal claim to the state courts, i.e., give them a fair opportunity to consider and correct violations of the prisoner's federal rights. See Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 888 (1995); Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003)(en banc); Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001). A state prisoner seeking relief with respect to a California conviction is required to "fairly present" his federal claims to the California Supreme Court. See Baldwin, 541 U.S. 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).

Given Petitioner's failure to seek any relief in the state courts with respect to his present conviction and/or sentence, the state high court has not been afforded a chance to rule on Petitioner's claims, whatever they may be, and Petitioner 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. If*fn3 Petitioner does properly exhaust his claims by fairly presenting them to the California Supreme Court, he may file, following that court's ruling, a new habeas petition in this Court.*fn4

Case 2:11-cv-08415-DDP -MAN Document 3 Filed 10/25/11 Page 5 of 5 Page ID #:13

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.


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