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Joshua Spencer Hill v. Warden

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


June 19, 2012

JOSHUA SPENCER HILL, PETITIONER,
v.
WARDEN, RESPONDENT.

The opinion of the court was delivered by: Dolly M. Gee United States District Judge

MEMORANDUM AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

On June 5, 2012, Joshua Spencer Hill (hereinafter referred to as "Petitioner") filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" in the United States District Court for the Central District of California. On December 14, 2011, in Riverside County Superior Court, Petitioner pled guilty to violating California Penal Code § 273.5 and § 2933.5 and was sentenced to two years in state prison. (See Petition at 2.)

It appears conclusively from the face of the Petition that state remedies have not been exhausted. There is no indication in the Petition whatsoever that the California Court of Appeal or California Supreme Court have been given an opportunity to rule on Petitioner's contentions. (See Petition at 3-5.)

A federal court will not review a state prisoner's petition for writ of habeas corpus unless it appears that the prisoner has exhausted available state remedies on each and every claim presented.

28 U.S.C. §2254(b) and (c); see O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Rose v. Lundy, 455 U.S. 509, 522 (1982). "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).

Exhaustion requires that the prisoner's contentions be fairly presented to the highest court of the state. Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009), cert. denied, 130 S.Ct. 3412 (2010). 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 Anderson v. Harless, 459 U.S. 4, 6 (1982); Pappageorge v. Sumner, 688 F.2d 1294 (9th Cir. 1982), cert. denied, 459 U.S. 1219 (1983).

ACCORDINGLY, IT IS ORDERED that the Petition be dismissed without prejudice.

Presented on

June 8, 2012 by:

/s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE

20120619

© 1992-2012 VersusLaw Inc.



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