The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a non-incarcerated person, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and paid the $5.00 filing fee. (Dkt. No. 1.) Petitioner challenges his 2011 conviction in the Yolo County Superior Court on the charge of driving under the influence with excessive blood alcohol, for which he was sentenced to serve 11 days in county jail and three years of summary probation, and ordered to pay a fine and attend alcohol education classes.
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).
"For a federal court to have jurisdiction over a habeas petition filed by a state prisoner, the petitioner must be 'in custody.'" Chaker v. Crogan, 428 F.3d 1215, 1219 (2005) (quoting Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir. 2001). The relevant time frame is the time the petition is filed. See Carafas v. LaValle, 391 U.S. 234, 238 (1968). A habeas corpus petitioner is "in custody" for the purposes of habeas jurisdiction while he remains on probation. See Chaker, 428 F.3d at 1219 (citing United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir. 1988). Here, although petitioner's address of record reflects that he is not currently incarcerated, nor was he incarcerated at the time he filed his petition, it appears that the "in custody" jurisdictional requirement of section 2254 is satisfied so long as he was serving his term of probation when he filed his petition on October 5, 2012.
The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986). If exhaustion is to be waived, it must be waived explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3).*fn1 A waiver of exhaustion, thus, may not be implied or inferred.
Here, petitioner indicates that he appealed the challenged conviction
to the superior court appellate department, but not to any higher
state court. (Dkt. No. 1 at 3.) Moreover, he has not filed any
petitions, applications or motions other than a direct appeal with
respect to the judgment of conviction at issue. (Id.) Petitioner has
failed to first present any of
the claims presented in his federal petition to the California Supreme
Court and thus has failed to exhaust state court remedies on all
claims presented.*fn2 Moreover, he does not allege
that state court remedies are no longer available. Accordingly, the
petition should be dismissed without prejudice.*fn3
Good cause appearing, IT IS HEREBY ORDERED that:
The Clerk of the Court is directed to serve a copy of these findings and recommendations together with a copy of the petition filed in the instant case on the Attorney General of the State of California; and
IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus (Dkt. No. 1) be dismissed for failure to exhaust state remedies.
These findings and recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Findings and Recommendations." Petitioner is advised that failure to file objections within the ...