The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DISCHARGING ORDER TO SHOW CAUSE (DOC. 8) ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE FOR FAILURE TO EXHAUST STATE COURT REMEDIES (Doc. 1) ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DIRECTING THE CLERK TO CLOSE THE CASE
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on May 15, 2012 (doc. 5). Pending before the Court is Petitioner's petition, which was filed in this Court on May 8, 2012, as well as Petitioner's response to the Court's order to show cause why the petition should not be dismissed for failure to exhaust state court remedies.
In the petition, Petitioner complained of inadequate medical treatment and retaliatory threats and conduct on the part of prison staff. Petitioner also challenged the procedures used at two prison disciplinary hearings concerning violations of prison rules involving Petitioner's "cheeking" or failing to swallow medications on February 19, 2012 (pet., doc. 1, 34-36), and his wilfully delaying peace officers in the performance of their duty by pretending to have a seizure, requiring medical attention, and thereby obstructing official duty on April 18, 2012 (id. at 49-51). Petitioner suffered losses of time credits as a result of the disciplinary findings.
Because much of the petition challenged conditions of confinement, the Court dismissed the petition without leave to amend insofar as it alleged claims concerning conditions of confinement.
Petitioner's claims concerning the disciplinary findings affected the duration of Petitioner's confinement. The Court noted that Petitioner had established that he filed a petition for habeas relief in the state superior court. However, Petitioner did not allege that he had presented his habeas claims to the California Supreme Court. The Court took judicial notice of information posted on the official website of the California Courts *fn1 with respect to filings in the California Supreme Court by Petitioner. At the time the OSC issued, the most recent habeas filing was In re Alton E. Dean, case number S201522. The docket of that case reflects that Petitioner filed the petition in that proceeding on April 6, 2012, and the petition was denied on April 25, 2012. The second disciplinary finding of which Petitioner complained did not occur until April 27, 2012 (pet. 49-50). Thus, the Court concluded that it appeared that Petitioner had not exhausted state court remedies with respect to his claims. The Court thus issued an order to Petitioner to show cause why the petition should not be dismissed for failure to exhaust state court remedies.
Petitioner filed a timely response to the order to show cause. Petitioner appended numerous documents to the one-hundred-forty-six-page response, including a copy of a petition captioned for the California Supreme Court. (Response, doc. 9, 139-45.) The Court notes from a review of the official website of the California Courts that Petitioner filed a petition for writ of habeas corpus in the California Supreme Court in In re Alton Eugene Dean, case number S203178, on June 8, 2012. Although the copy of the petition appended to Petitioner's response is not file-stamped and does not contain a case number, it purports to be signed and dated by Petitioner on June 5, 2012. It will be inferred that the petition appended to the response has been filed in the California Supreme Court.
II. Discharge of the Order to Show Cause Because Petitioner filed a timely response to the Court's order to show cause that issued on May 30, 2012, the order to show cause will be discharged.
III. Screening the Petition
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.
Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
IV. Failure to Exhaust State Court Remedies A petitioner who is in state custody and wishes to challenge collaterally a conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with the necessary jurisdiction a full and fair opportunity to consider each claim before presenting it to the federal court, and demonstrating that no state remedy remains available. Picard v. Connor, 404 U.S. 270, 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan v. Henry, 513 U.S. 364, 365 ...