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John Sok v. Francisco Jacquez

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


March 1, 2012

JOHN SOK, PETITIONER,
v.
FRANCISCO JACQUEZ, WARDEN, RESPONDENT.

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

O

ORDER --

(1) SUMMARILY DISMISSING ACTION WITHOUT PREJUDICE; and

(2) DENYING STAY-AND-ABEY MOTION WITHOUT PREJUDICE

The Court will dismiss the action summarily because the habeas petitioner expressly indicates that none of his three claims has been exhausted in the state supreme court, as is required for habeas relief. The Court also will deny without prejudice his attendant motion to stay and abey this action.

Generally, Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides that "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." More specifically, the Ninth Circuit indicates that a district court presented with an entirely unexhausted petition may, or even must, dismiss the action. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("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."), citing Jimenez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (district court is "obliged to dismiss [an entirely unexhausted petition] immediately" once respondent moves for such dismissal).

Here, Petitioner asserts three claims, but he expressly indicates that he has exhausted none of them in the California Supreme Court either on direct review or on state habeas review. See Pet. ¶¶ 4 (checking box indicating no direct-appeal petition to the California Supreme Court), 7(a)(3)-(4), 7(b)(3)-(4), 7(c)(3)-(4) (checking boxes indicating no habeas submission to California Supreme Court for all three claims). Moreover, the Court takes judicial notice, based on a search of public records at the website http://appellatecases.courtinfo.ca.gov/, that no person with Petitioner's first and last name (John Sok) has litigated any action in the California Supreme Court.

Accordingly, the Petition is DISMISSED WITHOUT PREJUDICE. The stay and abey motion presented along with the petition likewise is DENIED WITHOUT PREJUDICE.

20120301

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