United States District Court, C.D. California, Western Division
November 23, 2014
JOSEPH W. JONES, Petitioner,
Joseph W. Jones, Petitioner, Pro se, Corcoran, CA.
MEMORANDUM AND ORDER DISMISSING PETITION WITHOUT PREJUDICE
Margaret M. Morrow, United States District Judge.
Petitioner filed this petition for a writ of habeas corpus on October 7, 2014. It challenges his 2011 conviction in the Los Angeles Superior Court. [Petition at 2]. For the following reasons, the petition is subject to summary dismissal.
A state prisoner is required to exhaust all available state court remedies before a federal court may grant habeas relief. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); see Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995)(per curiam). The exhaustion requirement is satisfied when the substance of a petitioner's federal claim has been fairly presented to the state's highest court. Davis v. Silva, 511 F.3d 1005, 1008-1009 (9th Cir. 2008).
From the face of the petition, it is clear that petitioner has never presented any of the four claims for relief raised in this federal petition to the California Supreme Court. [See Petition at 5-6]. Therefore, he has not exhausted his state remedies. Although this Court has discretion to stay a mixed habeas petition to allow the petitioner to exhaust his state remedies, see Rhines v. Weber, 544 U.S. 269, 277-278, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), it does not have discretion to stay a petition containing only unexhausted claims. 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 need not inquire further as to the petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust."); Davis v. Adams, 2010 WL 1408290, *2 (C.D.Cal. 2010) (stating that a federal court cannot stay a completely unexhausted petition), report and recommendation adopted, 2010 WL 1408292 (C.D.Cal. 2010).
Accordingly, the petition for a writ of habeas corpus is dismissed without prejudice.
It is so ordered.
It is hereby adjudged that the petition for a writ of habeas corpus is dismissed without prejudice.