The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Phillip S. Gutierrez, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
On March 27, 2012, Petitioner filed a "Petition for Writ of Habeas Corpus by a Person in State Custody." The Petition alleges several claims concerning Petitioner's Superior Court conviction and sentence (Petition at 5-6).
On August 10, 2012, Respondent filed an Answer asserting, inter alia, that Petitioner has failed to present any of his claims to the California Supreme Court. Although Petitioner appealed unsuccessfully to the California Court of Appeal, and although Petitioner's co-defendant filed a petition for review, Petitioner himself did not file anything in the California Supreme Court (Lodged Documents 2-4; Petition at 3). Petitioner failed to file a Reply to the Answer within the allotted time, despite receiving an extension in which to do so.
A federal court will not grant a state petitioner's petition for writ of habeas corpus unless it appears that the petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b) - (c); Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). "Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." O'Sullivan v. Boerckel, 526 U.S. at 844. The exhaustion requirement seeks to avoid "the unseemliness of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." Id. at 844-45 (citations, internal brackets and quotations omitted). Exhaustion is considered on a "claim-by-claim" basis. Insyxiengmay v. Morgan, 403 F.3d 657, 667 (9th Cir. 2005).
State remedies have not been exhausted unless and until the petitioner's federal claims have been fairly presented to the state's highest court. See Castille v. Peoples, 489 U.S. 346, 350-51 (1989); James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied, 513 U.S. 935 (1994). Because Petitioner has failed to file anything in the California Supreme Court, he has failed to exhaust state remedies as to any of his claims.
Petitioner still may be able to present his unexhausted claims to the California Supreme Court. See, e.g., In re Harris, 5 Cal. 4th 813, 825, 21 Cal. Rptr. 2d 373, 855 P.2d 391 (1993) ("[H]abeas Corpus has become a proper remedy in this state to collaterally attack a judgment of conviction which has been obtained in violation of fundamental constitutional rights.") (citations and quotations omitted); Mendez v. Superior Court, 87 Cal. App. 4th 791, 799, 104 Cal. Rptr. 2d 839 (2001) (claim that conviction was obtained in violation of fundamental constitutional rights may be raised by state habeas petition; citation and internal quotations omitted).*fn1
In certain circumstances, the Court has authority to stay a "mixed" petition containing both exhausted and unexhausted claims.
See Rhines v. Weber, 544 U.S. 269 (2005) ("Rhines"); King v. Ryan, 564 F.3d 1133, 1143 (9th Cir.), cert. denied, 130 S. Ct. 214 (2009) (stay procedure authorized by Kelly v. Small, 315 F.3d 1063 (9th Cir.), cert. denied, 548 U.S. 1042 (2003) ("Kelly"), overruled on other grounds, Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), remains available after Rhines). However, the present Petition is not mixed; it is completely unexhausted. The Court cannot stay a completely unexhausted petition. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (Rhines stay inappropriate); Jarrar v. Barnes, 2009 WL 2394361, at *1 n.1 (E.D. Cal. Aug. 4, 2009) (Kelly stay inappropriate); Tappin v. United States District Court, 2008 WL 686555, at *8 (E.D. Cal. Mar. 11, 2008) (same). Therefore, the Petition must be dismissed without prejudice as unexhausted. See Guillory v. Roe, 329 F.3d 1015, 1017 (9th Cir.), cert. denied, 540 U.S. 974 (2003).*fn2
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and ...