United States District Court, C.D. California, Western Division
OPINION AND ORDER
DOUGLAS F. McCORMICK, Magistrate Judge.
On June 2, 2015, Petitioner Samuel Antonio Diaz filed a Petition for Writ of Habeas Corpus by a Person in State Custody, pursuant to 28 U.S.C. § 2254. Dkt. 1 ("Petition"). Petitioner also concurrently filed an Election Regarding Consent to Proceed Before a United States Magistrate Judge in which he voluntarily consents to have a United States Magistrate Judge conduct all further proceedings in this case, decide all dispositive and non-dispositive motions, and order the entry of final judgment.
The Petition appears to challenge Petitioner's 2012 conviction after a guilty plea for attempted murder, use of a deadly weapon, burglary, and kidnapping. Petition at 2. Petitioner alleges that his trial counsel was constitutionally ineffective, that the prosecutor committed misconduct, and that he is mentally incompetent. Id. at 5-14.
It plainly appears from the face of the Petition that the Petition is wholly unexhausted because Petitioner has not presented his claims to the California Supreme Court. See Petition at 2-3. Accordingly, as explained below, the Court must dismiss this action without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, for failure to exhaust his state court remedies.
A federal court will not grant a state prisoner's petition for writ of habeas corpus unless it appears that the prisoner has exhausted available state remedies. 28 U.S.C. § 2254(b), (c); Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). "For reasons of federalism, 28 U.S.C. § 2254 requires federal courts to give the states an initial opportunity to correct alleged violations of its prisoners' federal rights." Kellotat v. Cupp, 719 F.2d 1027, 1029 (9th Cir. 1983) (citation omitted).
Exhaustion requires that the prisoner's contentions be fairly presented to the state courts and be disposed of on the merits by the highest court of the state. See James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994). Moreover, a claim has not been fairly presented unless the prisoner has described in the state court proceedings both the operative facts and the federal legal theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Picard v. Connor, 404 U.S. 270, 275-78 (1971). As a matter of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in the petition. See Rose v. Lundy, 455 U.S. 509, 518-22 (1982).
A federal court may raise a habeas petitioner's failure to exhaust state remedies sua sponte. Stone v. City and Cnty. of San Francisco, 968 F.2d 850, 855-56 (9th Cir.1992). Petitioner has the burden of demonstrating he has exhausted available state remedies. See, e.g., Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972) (per curiam); Rollins v. Superior Court, 706 F.Supp.2d 1008, 1011 (C.D. Cal. 2010).
Here, Petitioner affirmatively states that he has not presented the claims in the Petition to the California Supreme Court either by way of a petition for review or a petition for writ of habeas corpus. See Petition at 3-4. Petitioner alleges that he did not appeal his convictions because he "did not understand the law and was never told by the court or [the] public defender that [he] could appeal." Petition at 3. This allegation is insufficient to excuse Petitioner's failure to properly present and exhaust his claims before the state courts. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (requiring good cause for petitioner's failure to exhaust); Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (holding that petitioner's belief that appellate counsel raised a claim before state court did not constitute good cause); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (holding that illiterate pro se litigant's reliance on another inmate's assistance was not sufficient cause). Accordingly, it appears from the face of the Petition that Petitioner cannot meet his burden to demonstrate that his claims have been exhausted.
If it were nonetheless clear that Petitioner's unexhausted claims were procedurally barred under state law, then the exhaustion requirement would be satisfied. See Castille v. Peoples, 489 U.S. 346, 351-52 (1989); Johnson v. Zenon, 88 F.3d 828, 831 (9th Cir. 1996). However, the Court concludes that it is not clear that the California Supreme Court will hold that Petitioner's unexhausted claims are procedurally barred under state law if Petitioner were to raise them in a habeas petition to the California Supreme Court, as such a proceeding is an original proceeding which is not subject to the same timeliness requirement as a petition for review of a Court of Appeal decision. See, e.g., In re Harris, 5 Cal.4th 813, 825 (1993) (granting habeas relief where petitioner claiming sentencing error, even though the alleged sentencing error could have been raised on direct appeal); People v. Sorensen, 111 Cal. App.2d 404, 405 (1952) (noting that claims that fundamental constitutional rights have been violated may be raised by state habeas petition). The Court therefore concludes that this is not an appropriate case for invocation of either statutory "exception" to the requirement that a petitioner's federal claims must first be fairly presented to and disposed of on the merits by the state's highest court. See 28 U.S.C. § 2254(b)(1)(B).
Once a Court determines that a habeas petition contains only unexhausted claims, it may dismiss the petition for failure to exhaust. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). Accordingly, because the Petition ...