United States District Court, C.D. California
ORDER: DISMISSING PETITION WITHOUT PREJUDICE; AND DENYING CERTIFICATE OF APPEALABILITY
DEAN D. PREGERSON, District Judge.
On January 3, 2014, Petitioner, a California prisoner, filed a habeas petition in this Court pursuant to 28 U.S.C. § 2254 ("Petition"). On January 9, 2014, United States Magistrate Judge Margaret A. Nagle issued an Order To Show Cause Re: Dismissal ("OSC"). In the OSC, Magistrate Judge Nagle explained that the Petition appears to be unexhausted, as well as barred by the doctrine established in Stone v. Powell , 428 U.S. 465, 96 S.Ct. 3037 (1975). She ordered Petitioner to file a response to the OSC and to show cause why this action should not be dismissed based on these grounds. On February 3, 2014, Petitioner filed a letter with exhibits, which the Court has construed as his Response to the OSC.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides that a petition for writ of habeas corpus "must" be summarily dismissed "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Here, it plainly appears that the Petition is unexhausted. Therefore, the Petition must be dismissed without prejudice.
Federal courts may not grant habeas relief to a person held in state custody unless the petitioner has exhausted his available state court remedies as to each of the issues presented. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy , 455 U.S. 509, 518, 102 S.Ct. 1198, 1203 (1982); Fields v. Waddington , 401 F.3d 1018, 1020 (9th Cir. 2005) ("We may review the merits of Petitioner's habeas petition only if he exhausted state court remedies."). "[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts." O'Sullivan v. Boerckel , 526 U.S. 838, 845, 119 S.Ct. 1728, 1732 (1999) (emphasis added); see also Baldwin v. Reese , 541 U.S. 27, 29, 124 S.Ct. 1347, 1349 (2004) (to give the State the chance to pass upon and resolve violations of his federal rights, a state prisoner must exhaust his available state remedies before seeking federal habeas relief).
To satisfy the exhaustion requirement, a petitioner must "fairly present" his federal claim to the state courts, i.e., give them a fair opportunity to consider and correct violations of the prisoner's federal rights. See Duncan v. Henry , 513 U.S. 364, 365, 115 S.Ct. 887, 888 (1995); Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) ( en banc ). A state prisoner seeking relief with respect to a California conviction is required to fairly present his federal claims to the California Supreme Court. See Baldwin , 541 U.S. at 29, 124 S.Ct. at 1349 (a state prisoner must fairly present his claim to a state supreme court having the power of discretionary review); Keating v. Hood , 133 F.3d 1240, 1242 (9th Cir. 1998).
The Petition alleges, under penalty of perjury, that Petitioner exhausted his claims on direct appeal. The Petition asserts that: the California Court of Appeal (Case No. B227567) affirmed Petitioner's conviction on June 28, 2012; and the California Supreme Court (again alleged to be Case No. "B227567") denied his petition for review on September 24, 2012. (Petition at 2-3, 5.) Petitioner has appended to the Petition a document labeled "petition for review, " which is addressed to the California Supreme Court and references the trial court case number for his criminal case (No. YA077077) and the California Court of Appeal case number for his direct appeal (No. B227567). The "petition for review" is not conformed, does not bear a case number, is not signed, is not dated, and seems to be incomplete.
In the OSC, Magistrate Judge Nagle stated:
The Court has reviewed the dockets for the California Court of Appeal and the California Supreme Court, which are available electronically,  and takes judicial notice of their contents pursuant to Rule 201 of the Federal Rules of Evidence. Those dockets confirm that: Petitioner appealed his conviction to the California Court of Appeal in Case No. B227567; and the California Court of Appeal affirmed the conviction on June 28, 2012. See also People v. Jones, 2012 WL 2499607 (Cal.App. 2 Dist. June 28, 2012) (the opinion on appeal). Those dockets also indicate that no petition for review was filed. The docket for Case No. B227567 does not contain an entry showing the filing of a petition for review - an event that would be indicated had it occurred - and shows that the remittitur issued on August 28, 2012 - an event that would not have occurred if a petition for review had been filed. The Court's search of the California Supreme Court's dockets, under all possible variants of Petitioner's name, did not yield any filings by Petitioner in the state high court.
(OSC at 3-4.)
In his Response, Petitioner asserts that: on July 13, 2013, he received a copy of the California Court of Appeal's decision on appeal; and on August 3, 2012, he received a letter from his appellate counsel advising Petitioner that his deadline for filing a petition for review was August 7, 2012. Petitioner asserts that he was subject to an institutional lockdown at that time and lacked library access to make copies of his intended petition for review, and he has attached copies of CDCR 22 forms bearing various dates in August 2012, in which he noted his August 7, 2012 deadline and requested library access. Acknowledging the above-noted findings by the Magistrate Judge, Petitioner states that he "thought" his "petition for review" had been filed and denied. Based on a document submitted with the Response, which the California Supreme Court returned to Petitioner, it appears that Petitioner mailed his "petition for review" to the California Supreme Court on or about September 9, 2012, it was received on September 19, 2012, and it was returned unfiled due to its untimeliness.
Thus, the "petition for review" appended to the Petition was not, in fact, filed in the California Supreme Court. As Petitioner has not raised his present claim(s) in the California Supreme Court, the Petition is unexhausted and must be dismissed without prejudice. Rose , 455 U.S. at 522, 102 S.Ct. at 1205.
For the foregoing reason, IT IS ORDERED that: the Petition is dismissed without prejudice; and Judgment shall be entered dismissing this action, without prejudice, for failure to exhaust available state remedies. If Petitioner subsequently exhausts his claims by fairly presenting them to the California Supreme Court, he may file, following that court's ruling, a new habeas petition in this Court.
In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has considered whether a certificate of appealability is warranted in this case. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel , 529 U.S. 473, 484-85, 120 S.Ct. 1595, 1604 (2000). The Court concludes that a ...