United States District Court, E.D. California
ORDER REGARDING RESPONDENT'S MOTION TO DISMISS (Doc. 15)
MICHAEL J. SENG, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Respondent is represented in this action by Galen Farris, of the Office of the Attorney General for the State of California. Both parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 13, 17.)
Petitioner is currently in the custody of the California Department of Corrections and challenges a conviction by the Stanislaus County Superior Court of two counts of residential robbery. (Lodged Doc. 2.) On December 1, 2011, Petitioner was sentenced to sixteen years and eight months in state prison. (Clerk's Tr. at 188-89.)
Petitioner appealed his conviction to the California Court of Appeal, Fifth Appellate District. Following briefing by the parties, the court affirmed the judgment. (Lodged Docs. 1-4.) Petitioner did not file a Petition for Review with the California Supreme Court.
Petitioner filed two Petitions for Writs of Habeas Corpus in Stanislaus County Superior Court, one while he was in custody awaiting trial, and the other following his conviction. The court denied both petitions in reasoned decisions. (Lodged Docs. 5, 6.) Petitioner subsequently filed a Petition for Writ of Habeas Corpus in the California Court of Appeal, Fifth Appellate District, which the court denied in a reasoned decision. (Lodged Doc. 7.) Petitioner has not filed a Petition for Writ of Habeas Corpus in the California Supreme Court.
On June 2, 2014, Petitioner filed the instant petition for writ of habeas corpus in this Court. (See Pet., ECF No. 1.) On August 8, 2014, Respondent filed a motion to dismiss for failure to exhaust state court remedies. (Mot. To Dismiss.) Over thirty days have passed, and Petitioner has not filed a response to the petition. The motion to dismiss stands ready for adjudication.
A. Procedural Grounds for Motion to Dismiss
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." The Advisory Committee Notes to Rule 5 of the Rules Governing § 2254 Cases state that "an alleged failure to exhaust state remedies may be raised by the attorney general, thus avoiding the necessity of a formal answer as to that ground." The Ninth Circuit has referred to a respondent's motion to dismiss on the ground that the petitioner failed to exhaust state remedies as a request for the Court to dismiss under Rule 4 of the Rules Governing § 2254 Cases. See, e.g., O'Bremski v. Maass , 915 F.2d 418, 420 (9th Cir. 1990); White v. Lewis , 874 F.2d 599, 602-03 (9th Cir. 1989). Based on the Rules Governing Section 2254 Cases and case law, the Court will review Respondent's motion for dismissal pursuant to its authority under Rule 4.
B. Exhaustion of State Remedies
A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson , 501 U.S. 722, 731 (1991); Rose v. Lundy , 455 U.S. 509, 518 (1982).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. Henry , 513 U.S. 364, 365 (1995); Picard v. Connor , 404 U.S. 270, 276 (1971); Johnson v. Zenon , 88 F.3d 828, 829 (9th Cir. 1996). Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan , 513 U.S. at 365-66; Lyons v. Crawford , 232 F.3d 666, 669 (9th Cir.2000), amended, 247 F.3d 904 (2001). In Duncan, the United States Supreme Court reiterated the rule as follows:
In Picard v. Connor , 404 U.S. 270, 275... (1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "opportunity to pass upon and correct alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling ...