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Deryus T. Brown v. Connie Gipson

July 3, 2012



Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).


Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if 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 . . . ." Rule 4, Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus at several stages of a case, including "summary dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the answer and petition are considered; or a dismissal after consideration of the pleadings and an expanded record."


In his petition, petitioner challenges a 2006 judgment of conviction entered against him for first-degree murder with special circumstances and a gang enhancement. According to the allegations of the pending federal habeas petition, the Sacramento County Superior Court sentenced petitioner to twenty-five years to life in state prison. Petitioner claims that he received ineffective assistance of counsel throughout the trial and appellate proceedings in his criminal case. However, petitioner acknowledges on the form habeas petition that he has not previously raise any of the claims presented in his federal habeas petition to any other court. (Pet. at 2 & 6.)


Exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). Exhaustion may only be waived explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may not be implied or inferred. Thus, state courts must be given the first opportunity to consider and address a state prisoner's habeas corpus claims. See Rhines v. Weber, 544 U.S. 269, 273-74 (2005) (citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) ("Habeas petitioners have long been required to adjudicate their claims in state court - that is, 'exhaust' them - before seeking relief in federal court."); Farmer v. Baldwin, 497 F.3d 1050, 1053 (9th Cir. 2007) ("This so-called 'exhaustion requirement' is intended to afford 'the state courts a meaningful opportunity to consider allegations of legal error' before a federal habeas court may review a prisoner's claims.") (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). A petitioner satisfies the exhaustion requirement by fairly presenting to the highest state court all federal claims before presenting the claims to the federal court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008).

Here, petitioner acknowledges on his form habeas petition filed in this court that he has not previously presented the claims set forth in his pending federal habeas petition to any state court. (Pet. at 6.) Further, there is no allegation in the pending petition that state court remedies are no longer available to petitioner. Accordingly, petitioner's claims are unexhausted and his pending federal habeas petition should be dismissed without prejudice.


Also pending before the court is petitioner's recently-filed motion for an extension of time or motion to stay his petition so that he can return to state court to exhaust his state court remedies. In his motion, petitioner acknowledges that he is now aware that he must first exhaust state court remedies before filing a federal habeas petition in this court.

Petitioner is advised that the court cannot stay his petition where, as here, the petition is wholly unexhausted. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). In Raspberry, the Ninth Circuit explained:

District courts have the discretion to hold a mixed petition in abeyance pending exhaustion of the unexhausted claims. We decline to extend that rule to the situation where the original habeas petition contained only unexhausted claims . . . . Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust.

Id. at 1154. See also, e.g., Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (district court obliged to dismiss immediately a petition containing no exhausted claims); Dotson v. Uribe, No. CV 09-6115-FMC (PLA), 2009 WL 4885200 at *4 (C.D. Cal. Dec. 14, 2009) (denying a motion for a stay and abeyance because the federal petition contained only unexhausted claims); ...

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