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Perry v. People

United States District Court, Ninth Circuit

July 23, 2013

DENNIS LEE PERRY, Petitioner,
v.
PEOPLE OF CALIFORNIA, Respondent.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Josephine Staton Tucker, 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.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus" in this Court[1] on May 21, 2013. The Petition challenges an April 10, 2013 sentence imposed on Petitioner by the Pasadena Superior Court (Petition at 2-4). According to the Petition, Petitioner has not appealed the sentence and has not filed any petition, application or motion with respect to the sentence (Petition at 5-6). It thus appears from the face of the Petition that Petitioner has failed to exhaust available state remedies as to 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.

DISCUSSION

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. ยง 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).

Petitioner has not yet presented any of his claims to the California Supreme Court. Petitioner may be able to present his claims to that 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).[2]

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, 558 U.S. 887 (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 Rasberry 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.

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) directing that Judgment be entered denying and dismissing the Petition without prejudice.


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