The opinion of the court was delivered by: John F. Walter United States District Judge
ORDER SUMMARILY DISMISSING ACTION AND DENYING CERTIFICATE OF APPEALABILITY
For the reasons set forth below, this petition for writ of habeas corpus by a state prisoner is summarily dismissed without prejudice as wholly unexhausted, and a certificate of appealability is denied.
This court has a duty to screen applications for habeas corpus relief. See Rules Governing § 2254 Cases in the United States District Courts, Rule 4 Advisory Committee Notes; see also Local Rule 72-3.2. Rule 4 requires a district court to promptly examine a habeas corpus petition, and if it plainly appears from the face of the petition and any annexed exhibits that the petitioner is not then entitled to relief in the district court, the judge shall make an order for summary dismissal of the petition. See Rules Governing § 2254 Cases in the United States District Courts, Rule 4; see also Local Rule 72-3.2 (authorizing magistrate judge to prepare proposed order for summary dismissal and proposed judgment for district judge if it plainly appears from face of petition that petitioner is not entitled to relief).
As a general matter, a petition for writ of habeas corpus "shall not be granted" unless state remedies have been exhausted. 28 U.S.C. § 2254(b)(1)(A); see also Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995)(per curiam). A petitioner satisfies the exhaustion requirement if he has fairly presented his federal claims to the state's highest court, in order to give the state the opportunity to pass upon alleged violations of its prisoners' federal rights. Duncan, 513 U.S. at 365; Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 158 L. Ed. 2d 64 (2004).
Here, the Petition appears to concern a conviction in San Luis Obispo Superior Court, case number F468767. [See Petition at 2.] However, there is no indication of the date of conviction, the date Petitioner was sentenced, or the sentence imposed. [Id.] Although there is some indication that an appeal was filed, there is no indication of its status nor does it appear that a petition for review was filed or that collateral relief was pursued in the California Supreme Court. [See Id. at 3-4.]*fn1 Thus, because it plainly appears from the face of the petition that relief is not available, and because it further appears that the defect cannot be cured by amendment at this time, the petition should be dismissed without prejudice. See generally, 28 U.S.C. § 2254(b).
Additionally, Rule 11 of the Federal Rules Governing Section 2254 Cases states that "the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability ("COA") is not issued unless there is "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a petition is, as here, dismissed on procedural grounds, a COA should be granted only if two elements are satisfied: (1) "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right"; and (2) "jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000). Here, there is nothing to indicate that jurists of reason would find anything debatable in the procedural ruling that the petition is wholly unexhausted. Thus, the court need not decide whether the application states a valid constitutional claim. See Id. at 485.
Accordingly, it is ORDERED that the petition for writ of habeas corpus is dismissed without prejudice and a certificate of appealability is denied.
Presented by: Dated: August 30, 2012 CARLA M. WOEHRLE United ...