UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
April 10, 2013
JESUS G. VILLANUEVA,
DIRECTOR CALIFORNIA DEPARTMENT OF CORRECTION AND REHABILITATION, ET AL.,
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 John F. Walter, 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.
Petitioner filed a "Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody" on March 4, 2013. The Petition alleges claims of ineffective assistance of counsel. Also on March 4, 2013, Petitioner filed a "Motion for Stay, and to Hold this Petition in Abeyance Until State Remidies [sic] are Exhausted" ("the Motion for Stay"). Respondent filed an "Opposition to Motion for Stay" on April 9, 2013.
It appears from the face of the Petition and from documents of which this Court may take judicial notice that Petitioner has failed to exhaust any of the claims alleged in the Petition. Accordingly, the Petition should be denied and dismissed without prejudice, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
A federal court will not grant a state prisoner's petition for writ of habeas corpus unless it appears that the prisoner 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. 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).
The only document Petitioner has yet presented to the California Supreme Court was his petition for review, a copy of which is appended to the Petition.*fn1 The petition for review did not fairly present any claim of ineffective assistance of counsel. Therefore, the Petition is completely unexhausted.
Petitioner still may be able to present his unexhausted claim to the California Supreme Court. See 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).*fn2
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), overruled on other grounds, Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007) ("Kelly"), 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); Dimitris v. Virga, 2012 WL 5289484, at *4 & n.3 (C.D. Cal. Feb. 16, 2012), adopted, 2012 WL 5267741 (C.D. Cal. Oct. 22, 2012); (Rhines and Kelly stays 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 denied and dismissed without prejudice.
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) denying the Motion for Stay; and (3) directing that Judgment be entered denying and dismissing the Petition without prejudice.
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.