The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RE: RESPONDENT'S MOTION TO DISMISS (Doc. 10) ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY DAYS ORDER GRANTING PETITIONER'S MOTIONS TO TAKE NOTICE OF STATEMENT OF CASE FOR RELIEF (Docs. 7 & 11)
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The instant petition was filed on May 18, 2012. (Doc. 1). On May 23, 2012, the Court ordered Respondent to file a response. (Doc. 3). On May 31, 2012, Petitioner filed a motion to take notice of statement of case for relief. (Doc. 8). Petitioner filed another, quite similar motion on August 13, 2012. (Doc. 11). On July 19, 2012, Respondent filed the instant motion to dismiss, contending that the claims in the petition have not been exhausted in state court and that, therefore, the petition should be dismissed. (Doc. 10). On August 13, 2012, Petitioner filed his opposition to the motion to dismiss.
(Docs. 12 & 13). On August 21, 2012, Respondent filed a reply to Petitioner's opposition. (Doc. 14). 2
A. Procedural Grounds for Motion to Dismiss
As mentioned, Respondent has filed a Motion to Dismiss the petition because it contains 5 unexhausted claims. Rule 4 of the Rules Governing Section 2254 Cases allows a district court to 6 dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that 7 the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 8 2254 Cases. 9
The Ninth Circuit has allowed Respondent's to file a Motion to Dismiss in lieu of an Answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a Respondent can file a Motion to Dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.
In this case, Respondent's Motion to Dismiss is based on Respondent's contention that Petitioner has never presented his claims to the California Supreme Court. Accordingly, the Court will review Respondent's Motion to Dismiss pursuant to its authority under Rule 4. O'Bremski, 915 F.2d at 420.
A petitioner who is in state custody and wishes to collaterally challenge his 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, 1163 (9th Cir. 1988).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 2 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 3 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 4 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full 5 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 6 claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 7 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 8
Additionally, the petitioner must have specifically told the state court that he was raising a 9 federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th ...