United States District Court, C.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Stephen V. Wilson, 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.
Petitioner, a state prisoner, filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on April 21, 2014, bearing a signature and service date of April 16, 2014. Petitioner, who allegedly has 32 months of his sentence remaining, contends that he is paralyzed from the chest down and is "[t]otally disabled and no threat to the public" (Petition, p. 3). Petitioner seeks "medical parole" pursuant to California Penal Code section 3550, and agrees to submit to electronic monitoring (Petition, p. 3). Attached to the Petition are the following documents:
1. a "Motion for Electronic Monitoring [P]rogram, etc., " bearing the case number of Petitioner's criminal case in the Los Angeles County Superior Court.
2. a copy of an alleged Los Angeles County Superior Court Minute Order, dated April 9, 2014, in which the Superior Court denied Petitioner's "Motion for Proposition 36 or Motion for Electronic Monitoring Sentence Modification" allegedly received by that court on April 3, 2014.
3. a form "Reasonable Modification or Accommodation Request, " dated April 16, 2014, in which Petitioner allegedly requested prison officials to provide medical parole with electronic monitoring to be paid for by Petitioner. In the "Motion for Electronic Monitoring [P]rogram, etc., " Plaintiff alleges that prison officials denied this request, assertedly on the ground that "the request needs to be approved by the court."
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. § 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).
Here, the Superior Court denied Petitioner's "Motion for Electronic Monitoring [P]rogram, etc." on April 9, 2014, only a week before Petitioner signed the present Petition on April 16, 2014. Petitioner alleges that he does not have any petition, appeal or other matter presently pending in any other court (Petition, p. 6). The docket of the California Supreme Court does not show that Petitioner has filed any habeas corpus petition or other initiating document in that court since he filed his petition for review from his criminal conviction in December of 2012. Thus, Petitioner has not yet presented to the California Supreme Court any of the claims alleged in the Petition. Therefore, the Petition is wholly unexhausted.
Petitioner may be able to present his claims to the California Supreme Court by filing a state habeas corpus petition therein. The Court expresses no opinion concerning whether consideration of a state habeas petition might be foreclosed by state procedural law. The California Supreme Court should evaluate this matter in the first instance. Moreover, even if there exists an applicable state procedural bar, the California Supreme Court nevertheless might choose to reach the merits of Petitioner's claims. See, e.g., Park v. California , 202 F.3d 1146 (9th Cir.), cert. denied, 531 U.S. 918 (2000).
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.
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 ...