July 9, 2013
ROBERTO LOPEZ, Petitioner,
ORDER OF DISMISSAL WITH LEAVE TO AMEND
EDWARD J. DAVILA, District Judge.
Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction. Petitioner has paid the filing fee.
Petitioner's petition was initially filed in the United States Court of Appeals for the Ninth Circuit as an application for leave to file a successive petition. The matter was then transferred to the Eastern District of California after the Ninth Circuit determined that Petitioner had never filed a previous habeas petition. The matter was then transferred to this Court as the proper venue. (See Docket No. 1.)
According to the petition, Petitioner pleaded guilty to unidentified charges in Monterey County Superior Court. (Docket No. 1 at 2.) Petitioner was sentenced to 32 months in state prison. (Id.)
A. Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
It shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." Id . § 2243.
B. Legal Claims
Petitioner claims that his rights were violated because his attorney misadvised him with respect to his plea agreement. Liberally construed, this claim is cognizable as an ineffective assistance of counsel claim under the Sixth Amendment. However, the petition is silent as to whether Petitioner presented this claim to the state high court before raising it in federal court.
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b)-(c). Before he may challenge either the fact or length of his confinement in a habeas petition in this Court, Petitioner must have presented to the California Supreme Court any claims he wishes to raise in this court. See Rose v. Lundy , 455 U.S. 509, 522 (1982) (holding every claim raised in federal habeas petition must be exhausted). If available state remedies have not been exhausted as to all claims, the district court must dismiss the petition. See id., 455 U.S. at 510; Guizar v. Estelle , 843 F.2d 371, 372 (9th Cir. 1988).
In the interest of justice, Petitioner shall be given an opportunity to file an amended petition showing that all the claims have been exhausted. Petitioner is also advised that he must provide all the relevant information with respect to his state conviction in the amended petition. For this purpose, Petitioner shall be provided with the court's form petition to use to file an amended petition.
For the foregoing reasons,
1. The petition is DISMISSED with leave to amend. Petitioner must, within twenty-eight (28) days of the date this order is filed, file an amended petition challenging the lawfulness of the state conviction for which he is currently incarcerated. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy , 455 U.S. 509, 515-16 (1982). The amended petition must include the caption and civil case number used in this order, No. C 13-02391 EJD (PR), and must include the words AMENDED PETITION on the first page.
Failure to file a timely response in accordance with this order will result in the dismissal of this action without prejudice and without further notice to Petitioner.
The Clerk shall include two copies of the court's form petition with a copy of this order to Petitioner.