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Patrick D. Kelley, Jr v. Superior Court of the State of California


November 22, 2011


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



On June 23, 2011, Patrick D. Kelley, Jr. ("petitioner"), a state prisoner who is proceeding pro se, filed a Petition for Writ of Habeas Corpus (the "Petition"). Petitioner appears to challenge a conviction in the Los Angeles County Superior Court and seeks to withdraw his guilty plea in such action due to the alleged failure of the California Department of Corrections and Rehabilitation properly to calculate his sentence. (Petition at 2-3). It plainly appears from the face of the Petition, that petitioner is not entitled to relief at this time because petitioner's claim has not been presented to the California Supreme Court and the Petition is wholly unexhausted. Accordingly, the Petition is dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.*fn1


A federal court will not grant a state prisoner's petition for writ of habeas corpus unless it appears that the prisoner has exhausted available state remedies.

28 U.S.C. § 2254(b), (c); Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Park v. California, 202 F.3d 1146, 1150 (9th Cir.), cert. denied, 531 U.S. 918 (2000). "For reasons of federalism, 28 U.S.C. § 2254 requires federal courts to give the states an initial opportunity to correct alleged violations of its prisoners' federal rights." Kellotat v. Cupp, 719 F.2d 1027, 1029 (9th Cir. 1983) (citation omitted).

Exhaustion requires that the prisoner's contentions be fairly presented to the highest court of the state. Davis v. Silva, 511 F.3d 1005, 1008 (9th Cir. 2008) (citation omitted); James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied, 513 U.S. 935 (1994). 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 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Scott v. Schriro, 567 F.3d 573, 582 (9th Cir.) (per curiam), cert. denied, 130 S. Ct. 1014 (2009); Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999).

Petitioner has the burden of demonstrating he has exhausted available state remedies. See, e.g., Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972) (per curiam); Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.), cert. denied, 522 U.S. 833 (1997); Rollins v. Superior Court, 706 F. Supp. 2d 1008, 1011 (C.D. Cal. 2010). In the present proceeding, petitioner affirmatively represents that he has not presented any challenge to his conviction to the California Supreme Court. (Petition at 6, 7). Accordingly, it plainly appears from the face of the Petition that petitioner cannot meet his burden to demonstrate that he has exhausted his claim.*fn2

The Court notes that the exhaustion requirement may be satisfied if a petitioner's unexhausted claim is clearly procedurally barred under state law. See Castille v. Peoples, 489 U.S. 346, 351-52 (1989); Johnson v. Zenon, 88 F.3d 828, 831 (9th Cir. 1996). In this case, however, it is not "clear" that the California Supreme Court would deem petitioner's claim procedurally barred under state law if he were to raise it in a habeas petition in the California Supreme Court. See In re Harris, 5 Cal. 4th 813, 825 (1993) ("[H]abeas corpus has become a proper remedy in this state to collaterally attack a judgment of conviction which has been obtained in violation of fundamental constitutional rights.") (citations omitted); People v. Sorenson, 111 Cal. App. 2d 404, 405 (1952) (claims that fundamental constitutional rights have been violated may be raised by state habeas petition).*fn3

Once a Court determines that a habeas petition contains only an unexhausted claim, it may dismiss the petition for failure to exhaust. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). Accordingly, because the Petition in this case contains only an unexhausted claim dismissal thereof is appropriate.


IT IS THEREFORE ORDERED that the Petition is dismissed and that Judgment be entered accordingly.

Presented by:*fn4

Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE

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