United States District Court, C.D. California
November 17, 2014
DAVEN LEVI WILLIAMSON, Petitioner,
DEPUTY KIM SMITH, ET AL., Respondents
Daven Levi Williamson, Petitioner, Pro se, Orcutt, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HON. KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Beverly Reid O'Connell, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On September 22, 2014, petitioner Daven Levi Williamson (" Petitioner"), proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (" Petition") challenging his 2014 state conviction for commercial burglary. CM/ECF Docket (" dkt.") 1. While not entirely clear, Petitioner appears to assert claims related to his " pro per status." Id. at 3.
On September 25, 2014, this Court issued an Order to Show Cause as to why the Petition should not be dismissed due to the apparent failure to exhaust state court remedies. Dkt. 3. The Court expressly warned Petitioner that " failure to timely file and serve a response as directed . . . will result in a recommendation that this action be dismissed without prejudice for failure to exhaust state remedies, for failure to prosecute, and/or for failure to obey court orders." Id. To date, Petitioner has failed to file any response. Thus, for the reasons discussed below, the Court recommends the Petition be dismissed without prejudice as a completely unexhausted petition.
A state prisoner must exhaust his or her state court remedies before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). To satisfy the exhaustion requirement, a habeas petitioner must fairly present his or her federal claims in the state courts in order to give the State the opportunity to pass upon and correct alleged violations of the prisoner's federal rights. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam). A habeas petitioner must give the state courts " one full opportunity" to decide a federal claim by carrying out " one complete round" of the state's appellate process in order to properly exhaust a claim.
O'Sullivan, 526 U.S. at 845.
For a petitioner in California state custody, this generally means that the petitioner must have fairly presented his or her claims in a petition to the California Supreme Court.
See O'Sullivan, 526 U.S. at 845 (interpreting 28 U.S.C. § 2254(c)); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (applying O'Sullivan to California). A claim has been fairly presented if the petitioner has both " adequately described the factual basis for [the] claim" and " identified the federal legal basis for [the] claim." Gatlin, 189 F.3d at 888.
In this case, Petitioner states the following ground for relief: " This petition is being made because Santa Barbara County Sheriff's Dept. and deputies deprived me of my right to represent myself in court by withholding my book named 'Represent Yourself in Court' thus severely damaging the outcome of my case that I am now appealing . . . ." Pet. at 5. However, based upon the face of the Petition, neither this nor any other ground related to the 2014 conviction has been ruled on by the California Supreme Court. Thus, the ground which Petitioner purports to raise in the instant Petition has not yet been exhausted.
Petitioner, in fact, concedes his appeal is " still pending" in Santa Barbara County Superior Court Case No. 1452084. Id. When a claim raised in a federal habeas petition is still pending before a state court, the petitioner has not met the exhaustion requirement because he has not given the state court the first opportunity to address the federal claim. See Duncan, 513 U.S. at 365. " If the prisoner's claim is meritorious, and if the state remedy is prompt and complete, there is no need to bring post-conviction proceedings in federal courts." Sherwood v. Tomkins, 716 F.2d 632, 633 (9th Cir. 1983) (internal quotation marks and citation omitted).
Thus, because Petitioner's claim has not been " fairly presented" to the California Supreme Court, the Petition is completely unexhausted and warrants dismissal.
See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (" Once a district court determines that a habeas petition contains only unexhausted claims, . . . it may simply dismiss the habeas petition for failure to exhaust." (citation omitted)). Accordingly, the Petition should be dismissed without prejudice to Petitioner reasserting his claim(s) in a future habeas petition, after he has exhausted his state court remedies and his state proceedings have concluded.
IT IS THEREFORE RECOMMENDED that the District Court issue an Order: (1) approving and accepting this Report and Recommendation; and (2) directing that Judgment be entered denying the Petition and dismissing this action without prejudice.