United States District Court, N.D. California, Oakland Division
ORDER DISMISSING CASE
PHYLLIS J. HAMILTON, District Judge.
Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in Monterey County which is in this district, so venue is proper here. See 28 U.S.C. § 2241(d). Petitioner was ordered to show cause why this petition should not be dismissed as unexhausted.
A jury convicted petitioner of inflicting great bodily injury during the deliberate attempted murder of a sheriff's deputy. He was sentenced to 34 years in state prison. His conviction was affirmed on appeal. People v. Campos, 2012 WL 3996829 (Cal.App. 6 Dist. Sep. 11, 2012).
A. Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court must "specify all the grounds for relief available to the petitioner... [and] state the facts supporting each ground." Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. "[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error.'" Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)).
B. Legal Claims
Petitioner's sole ground for federal habeas relief asserts that his trial counsel was ineffective in the plea bargaining stage pursuant to Lafler v. Cooper, 132 S.Ct. 1376 (2012).
This claim was not presented on direct appeal. Petitioner stated that state habeas petitions were pending in the superior court, court of appeals, and state supreme court. However, he had only included a petition to the superior court that was dated September 17, 2014. A search of the dockets for the court of appeals and state supreme court did not indicate any pending petitions.
Before he may challenge either the fact or length of his confinement in a habeas petition in this court, petitioner must present to the California Supreme Court any claims he wishes to raise in this court. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every claim raised in federal habeas petition must be exhausted). A petition containing solely unexhausted claims must be dismissed. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001).
Petitioner was ordered to show cause why this case should not be dismissed. He was told to inform the court if the claim was exhausted or if he had filed a petition with the state supreme court and when that petition was filed. The time to respond to the court's order has passed and petitioner has not filed a response or otherwise communicated with the court. The case is dismissed without prejudice but petitioner may file a new case once the claim has been properly exhausted.
The petition is DISMISSED for the reasons set forth above. Because reasonable jurists would not find the result here debatable, a certificate of appealability ("COA") is DENIED. See Slack v. ...