United States District Court, N.D. California, Eureka Division
ORDER DISMISSING CASE AND DENYING A CERTIFICATE OF APPEALABILITY
NANDOR J. VADAS, Magistrate Judge.
Petitioner pro se proceeds with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court ordered petitioner to show cause why the case should not be dismissed as unexhausted. (Doc. 5.) Petitioner has filed a response. (Doc. 7.)
Petitioner pled nolo contendere to disturbing the peace on October 4, 2013, and was sentenced to three years of probation and ordered to take several classes. On January 7, 2015, petitioner was found to have violated probation and remanded into custody to serve a ninety day sentence. It appears that petitioner is challenging the underlying conviction, not the violation of probation.
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)). "Habeas petitions which appear on their face to be legally insufficient are subject to summary dismissal." Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 1108 (9th Cir. 1996) (Schroeder, J., concurring).
Before she may challenge either the fact or length of her confinement in a habeas petition in this court, petitioner must exhaust any claims she wishes to raise in this court. See Rose v. Lundy, 455 U.S. 509, 522 (1982). The general rule is that a federal district court must dismiss a federal habeas petition containing any claim as to which state remedies have not been exhausted. Id.
A fully unexhausted federal habeas petition may not be stayed and must be dismissed. See, e.g., Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding that a fully unexhausted petition may not be stayed and observing: "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."); Jones v. McDaniel, 320 Fed.Appx. 784, 786 (9th Cir.2009) (affirming the dismissal of a fully unexhausted petition and denial of a stay, because a " Rhines stay is only available for a mixed habeas petition where at least some of the claims have been exhausted, and none of [petitioner's] claims were exhausted").
Because it appeared that petitioner had presented a fully unexhausted petition, she was ordered to show cause why this action should not be dismissed. In her response petitioner states that her appointed counsel provided faulty legal advice concerning her plea and efforts to withdraw the plea. However, there is no indication that petitioner has even attempted to exhaust these claims. While an attorney's actions may justify equitable tolling, petitioner has presented a fully unexhausted federal habeas petition that must be dismissed. Petitioner may refile this habeas case once all the claims have been fully exhausted.
The petition is DISMISSED without prejudice as unexhausted. Petitioner may file a new petition once the claims have been exhausted. Because reasonable jurists would not find the result here debatable, a certificate of appealability ("COA") is DENIED. See Slack v. McDaniel, 529 ...