August 29, 2013
ANDRE LASHIN, Petitioner,
PLACER COUNTY, Respondent.
FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee.
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court...." Rule 4, Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus at several stages of a case, including "summary dismissal under Rule 4; a dismissal pursuant to a motion by the respondent; a dismissal after the answer and petition are considered; or a dismissal after consideration of the pleadings and an expanded record." See also O'Bremski v. Maass , 915 F.2d 418, 420 (9th Cir. 1990); Gutierrez v. Griggs , 695 F.2d 1195, 1198 (9th Cir. 1983).
In his petition, petitioner challenges the nolo contendere plea he entered in the Placer County Superior Court on October 1, 2012, to charges of burglary, great bodily injury, and receiving stolen property. Petitioner claims that he received ineffective assistance of counsel in connection with his plea and further challenges the legality of the sentence, including enhancements, imposed in his case. (Pet. at 2-6.)
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). Exhaustion may only be waived explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may not be implied or inferred. Thus, state courts must be given the first opportunity to consider and address a state prisoner's habeas corpus claims. See Rhines v. Weber , 544 U.S. 269, 273-74 (2005) (citing Rose v. Lundy , 455 U.S. 509, 518-19 (1982)); King v. Ryan , 564 F.3d 1133 (9th Cir. 2009) ("Habeas petitioners have long been required to adjudicate their claims in state court - that is, exhaust' them - before seeking relief in federal court."); Farmer v. Baldwin , 497 F.3d 1050, 1053 (9th Cir. 2007) ("This so-called exhaustion requirement' is intended to afford the state courts a meaningful opportunity to consider allegations of legal error' before a federal habeas court may review a prisoner's claims.") (quoting Vasquez v. Hillery , 474 U.S. 254, 257 (1986)). A petitioner satisfies the exhaustion requirement by fairly presenting to the highest state court all federal claims before presenting the claims to the federal court. See Baldwin v. Reese , 541 U.S. 27, 29 (2004); Duncan v. Henry , 513 U.S. 364, 365 (1995); Picard v. Connor , 404 U.S. 270, 276 (1971); Wooten v. Kirkland , 540 F.3d 1019, 1025 (9th Cir. 2008).
Here, petitioner acknowledges on his form habeas petition filed in this court that the only court he "appealed" to from his judgment of conviction was the Placer County Superior Court. (Pet. at 5.) In addition, according to the California Supreme Court website, petitioner has not filed any appeals or petitions before that court. Further, petitioner has failed to allege that state court remedies are no longer available to him. Accordingly, petitioner's claims for federal habeas relief are unexhausted and should be dismissed without prejudice.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Petitioner's petition for writ of habeas corpus (Doc. No. 1) be dismissed without prejudice for failure to exhaust state court remedies; and
2. This action be closed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst , 951 F.2d 1153 (9th Cir. 1991).
In any objections he elects to file, petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).