United States District Court, C.D. California
June 10, 2014
DIANNA SUE SULLIVAN, Petitioner,
SUPERIOR COURT OF CALIFORNIA, COUNTY OF RIVERSIDE, Respondent.
ORDER: DISMISSING PETITION WITHOUT PREJUDICE; AND DENYING CERTIFICATE OF APPEALABILITY
MARGARET A. NAGLE, Magistrate Judge.
On April 7, 2014, Petitioner, a California prisoner, filed a 28 U.S.C. § 2254 habeas petition in the United States District Court for the Northern District of California (Petition"). On June 3, 2014, the Petition was transferred to this district and filed on June 6, 2014.
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." It plainly appears that the Petition is unexhausted. Accordingly, Rule 4 summary dismissal is required.
Federal courts may not grant habeas relief to a person held in state custody unless the petitioner has exhausted her 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 her available state remedies before seeking federal habeas relief).
To satisfy the exhaustion requirement, a petitioner must "fairly present" her federal claims 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 her 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 her claim to a state supreme court having the power of discretionary review); Keating v. Hood , 133 F.3d 1240, 1242 (9th Cir. 1998).
Petitioner alleges that, following her guilty plea in Riverside County Superior Court Case No. SW1300303, on June 6, 2013, she was convicted and sentenced to 16 months in state prison. (Petition at 2-3.) She did not appeal her conviction or sentence. ( Id. at 3.) However, she has filed several petitions in the trial court seeking a modification of her sentence, in which she apparently raised the same claims now alleged as habeas claims in the instant Petition. Petitioner alleges that the trial court did not respond to her first petition and denied her second petition on February 19, 2013, and that she has filed a third such petition in the trial court, which is pending. ( Id. at 4-5.) She does not allege that she has raised her claims in the California Court of Appeal or the California Supreme Court. (Petition, passim. )
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. A search of those dockets shows that Petitioner has not filed any proceeding in the California Supreme Court or the California Court of Appeal. Accordingly, the instant Petition is unexhausted, because Petitioner did not present her claims to the California Supreme Court before she sought federal habeas relief. Because the Petition is fully unexhausted, it must be dismissed without prejudice. Rose , 455 U.S. at 522, 102 S.Ct. at 1205.
For the foregoing reasons, it is plain from the face of the Petition that summary dismissal of the Petition is required, because it is unexhausted. Accordingly, IT IS ORDERED that: the Petition is dismissed, without prejudice, for failure to exhaust available state remedies; and Judgment shall be entered dismissing this action without prejudice.
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 , 120 S.Ct. 1595, 1604 (2000). The Court concludes that a certificate of appealability is unwarranted and, thus, a certificate of appealability is DENIED.