The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS THE FIRST AMENDED PETITION FOR LACK OF EXHAUSTION ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner, who is presently confined in the Fresno County Jail, apparently awaiting the resolution of unspecified criminal proceedings against him, filed the instant petition on January 4, 2013, alleging material misrepresentations of fact by jail employees.*fn1 (Doc. 1). On January 10, 2013, after conducting a preliminary screening of the petition, the Court issued an order requiring Petitioner to file an amended petition because (1) Petitioner had not established that he has exhausted his claims 2 in state court; (2) he failed to name a proper respondent, thus depriving the Court of jurisdiction; and 3 (3) his claims failed to allege cognizable federal habeas claims. (Doc. 4). The order of January 10, 4 2012 gave Petitioner thirty days within which to file an amended petition. On January 16, 2013, 5 Petitioner filed the instant first amended petition. (Doc. 7). In his amended petition, Petitioner raises 6 an entirely new set of claims apparently unrelated to those in the original petition. However, because 7 the amended petition suffers from the same deficiencies as the original petition and because it does not 8 appear that Petitioner can remedy these deficiencies through additional pleading, the Court will 9 recommend dismissal of the amended petition.
A. Procedural Grounds for Summary Dismissal.
Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:
If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.
The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. 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).
B. Exhaustion of Remedies.
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 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 2 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 3 F.3d 828, 829 (9th Cir. 1996). In this instance, the highest state court would be the California Supreme 4 Court. A federal court will find that the highest state court was given a full and fair opportunity to 5 hear a claim if the petitioner has presented the highest state court with the claim's factual and legal 6 basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 7 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 Cir.1998).
Here, in his amended petition, Petitioner does not allege that he has presented any of his claims to the California Supreme Court. Indeed, he does not indicate that he has presented his claims to any state court for either direct or collateral review. Further, it is not even clear that there is a judgment or state adjudication that could be reviewed since Petitioner also alleges that he is "awaiting trial." (Doc. 7, p. 2). In his original petition, Petitioner indicated that he filed a state habeas petition in the Fresno County Superior Court regarding his claim of material misrepresentations of fact. However, in the amended petition relating to the restraining orders against Petitioner, he does ...