United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, Magistrate Judge.
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 11, 2014, counsel for respondent filed the pending motion to dismiss, arguing that the claims in petitioner's habeas petition are unexhausted. Petitioner has not filed an opposition to the motion.
On September 8, 2009, petitioner pled no contest to a single count of inflicting corporal injury on the mother of his child and admitted to suffering a prior strike conviction under California's Three Strikes Law. Pursuant to his plea agreement, the Yolo County Superior Court sentenced petitioner to a three year term of probation, which he later violated. On April 6, 2012, the superior court held a probation revocation hearing and revoked petitioner's probation. The court then sentenced petitioner to three years in state prison, doubled to a six year term of imprisonment, due to the prior strike petitioner admitted to as part of his plea agreement. (Pet. Attach., Resp't's Lodged Docs. 1 & 2.)
On September 4, 2013, the California Court of Appeal for the Third Appellate District affirmed petitioner's judgment of conviction. (Pet. Attach., Resp't's Lodged Doc. 3.)
In the pending motion to dismiss, counsel for respondent argues that the claims presented by petitioner in the habeas petition pending before this court are unexhausted. Specifically, counsel contends that petitioner never sought review of his judgment of conviction by the California Supreme Court and has not filed any petitions for writ of habeas corpus in the state court system. (Resp't's Mot. to Dismiss at 2.)
As noted above, petitioner has not filed any opposition to respondent's motion to dismiss despite being forewarned of the possible consequences of his failure to do so.
I. Exhaustion of State Court Remedies
State courts must be given the first opportunity to consider and address a state prisoner's habeas corpus claims. See Rhines v. Weber, 544 U.S. 269, 273-74 (2005) (citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) ("Habeas petitioners have long been required to adjudicate their claims in state court - that is, exhaust' them - before seeking relief in federal court."); Farmer v. Baldwin, 497 F.3d 1050, 1053 (9th Cir. 2007) ("This so-called exhaustion requirement' is intended to afford the state courts a meaningful opportunity to consider allegations of legal error' before a federal habeas court may review a prisoner's claims.") (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). Generally speaking, a federal court will not grant a state prisoner's application for a writ of habeas corpus unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1). The exhaustion requirement will not be deemed to have been waived unless the state, through counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(3).
A petitioner satisfies the exhaustion requirement by fairly presenting to the highest state court all federal claims before presenting those claims for relief to the federal court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008). A federal claim is fairly presented if the petitioner has described the operative facts and the federal legal theory upon which his claim is based. See Wooten, 540 F.3d at 1025 ("Fair presentation requires that a state's highest court has a fair opportunity to consider... and to correct [the] asserted constitutional defect.'"); Lounsbury v. Thompson, 374 F.3d 785, 787 (9th Cir. 2004) (same) (quoting Picard, 404 U.S. at 276)); Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1146 (9th Cir. 2007); Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999); see also Bland v. California Dep't of Corrs., 20 F.3d 1469, 1473 (9th Cir. 1994).
In this case, petitioner appealed his conviction to the California Court of Appeal for the Third Appellate District, and that court affirmed the judgment of conviction. (Pet. Attach., Resp't's Lodged Doc. 3.) However, according to the California Supreme Court website, to date, petitioner has not filed any appeals or petitions for writ of habeas corpus challenging his Yolo County Superior Court conviction before that court. Thus, petitioner has not fairly presented any of his federal habeas corpus claims to the California Supreme Court as required. Further, petitioner has not alleged that state court ...