United States District Court, E.D. California
ALLISON CLAIRE, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se and in forma pauperis with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. The parties have consented to the jurisdiction of the magistrate judge. ECF Nos. 5, 9. Respondent has filed a motion to dismiss based on petitioner's failure to exhaust her only claim for relief. ECF No. 10. Petitioner has filed an opposition, ECF No. 12, and respondent has filed a reply, ECF No. 13. For the reasons that follow, the motion to dismiss will be granted.
I. Factual and Procedural Background.
Petitioner entered a no contest plea to voluntary manslaughter, attempted second degree robbery, and second degree robbery in the Sacramento Superior Court. See Lodged Doc. No. 1 (Abstract of Judgment). On June 10, 2011, she was sentenced to a stipulated determinate term of twenty-three years. Id.
Petitioner was represented by counsel on appeal who filed a Wende brief in the California Court of Appeal. The California Court of Appeal affirmed petitioner's convictions, but ordered the judgment to be modified to reflect all of the fines and fees as well as an additional day of custody credit. See Lodged Doc. No. 3 (California Court of Appeal Opinion); see also Lodged Doc. No. 2 (Amended Abstract of Judgment).
Rather than file a petition for review in the California Supreme Court, petitioner next filed a request for a certificate of probable cause in the Sacramento Superior Court. See ECF No. 12 at 5-8. On March 26, 2013, the trial court rejected this notice of appeal and indicated that it was received but not filed due to its untimeliness. See ECF No. 12 at 8.
Petitioner then filed a habeas corpus petition in the Sacramento Superior Court challenging her sentence. ECF No. 12 at 9-11. The trial court denied this habeas petition finding that petitioner's sentence enhancement was authorized pursuant to California Penal Code § 12022.5(a). Id . It also found her remaining sentencing challenges were barred by In re Dixon , 41 Cal.2d 756, 759 (1953), and In re Harris , 5 Cal.4th 813, 828 (1993), since they could have been raised on direct appeal but were not. Id.
In a postcard denial, the California Court of Appeal denied petitioner's habeas corpus petition on August 22, 2013. ECF No. 12 at 12. The record before the court does not indicate what issue(s) petitioner raised in that state habeas petition since a copy of it was not provided by either petitioner or the respondent.
Next petitioner filed a petition for review in the California Supreme Court that was received on September 12, 2013, but returned to petitioner on September 26, 2013 due to her failure to submit a timely application for relief from default. ECF No. 12 at 27. While a copy of this petition for review was not provided to this court, it appears based on the timeframe in which it was submitted that petitioner was seeking review of the California Court of Appeal's denial of habeas corpus relief.
On October 10, 2013, petitioner filed the instant federal habeas corpus application raising a single claim for relief. ECF No. 1. Petitioner alleges that the trial court imposed an illegal enhancement that violated her Sixth Amendment rights under the federal constitution as well as Apprendi v. New Jersey , 530 U.S. 466 (2000). ECF No. 1 at 4. While petitioner cites to a federal case in the heading of this claim, the facts supporting this claim for relief suggest that she is actually challenging the state court's application of its own sentencing laws.
II. Legal Principles on Exhaustion
The 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). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal habeas court. Picard v. Connor , 404 U.S. 270, 276 (1971); Middleton v. Cupp , 768 F.2d 1083, 1086 (9th Cir. 1985). Exhaustion is a matter of state court comity and does not affect this court's jurisdiction to entertain petitioner's habeas corpus application. See Harris v. Superior Ct. , 500 F.2d 1124, 1126-27 (9th Cir. 1974) (en banc); see also 28 U.S.C. § 2254(b)(2) (stating that a federal habeas petition may be denied on the merits notwithstanding a petitioner's failure to exhaust state court remedies).
Where a federal habeas petition contains frivolous claims, requiring state court exhaustion does not serve the underlying purpose of comity. See Rose v. Lundy , 455 U.S. 509, 525 (1982) (Blackmn, J., concurring) (emphasizing that requiring exhaustion of frivolous claims wastes the "state judiciary's time and resources... rejecting the obviously meritless unexhausted claim, which doubtless will receive little or no attention in the subsequent federal proceeding that focuses on the substantial exhausted claim."). Even in a capital case, the Ninth Circuit Court of Appeal has concluded that forcing a petitioner to return to state ...