United States District Court, C.D. California
ORDER: SUMMARILY DISMISSING PETITION WITHOUT PREJUDICE; AND DENYING CERTIFICATE OF APPEALABILITY
GAIL J. STANDISH, Magistrate Judge.
On June 16, 2015, Petitioner filed a 28 U.S.C. § 2254 habeas petition in this district ("Petition"). Concurrently, Petitioner filed a signed "Consent to Proceed Before a United States Magistrate Judge, " in which he signed a statement reading, "I voluntarily consent to have a United States Magistrate Judge conduct all further proceedings in this case, decide all dispositive and non-dispositive matters, and order the entry of final judgment." ( See Dkt. No. 2.)
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides that a petition for writ of habeas corpus "must" be summarily dismissed "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Here, it plainly appears that the Petition is fully unexhausted. Therefore, the Petition must be dismissed,  for the following reasons.
On June 20, 2012, Petitioner was convicted in the Los Angeles Superior Court following a nolo contendere plea. Petitioner alleges that the execution of his sentence was suspended and he was to serve three years of probation following one year in the County Jail. (Petition at 2.)
Petitioner appealed, raising claims not alleged in the instant Petition. (Petition at 3, Ex. 2.) On December 11, 2012, Petitioner's conviction was affirmed by the California Court of Appeal. According to the California Court of Appeal's opinion on direct appeal, Petitioner received a suspended sentence and three years' formal probation. On January 3, 2013, the California Court of Appeal denied rehearing. Petitioner did not file a petition for review in the California Supreme Court.
Petitioner filed a habeas petition in the trial court, which was denied on March 15, 2013. (Petition Ex. 4.) Petitioner then filed two habeas petitions in the California Court of Appeal. The first (Case No. B2499520) was filed on June 24, 2013, and was denied on July 16, 2013. (Petition Ex. 3.) The second (Case No. B259983) was filed on November 10, 2014, and was denied on November 25, 2014. (Petition Ex. 5.) As he admits in the verified Petition and as shown by the dockets for the state courts, Petitioner has not filed any habeas petition or other post-conviction filing in the California Supreme Court.
Federal courts may not grant habeas relief to a person held in state custody unless the petitioner has exhausted his available state court remedies as to each of the issues presented. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 102 S.Ct. 1198, 1203 (1982); Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005) ("We may review the merits of Petitioner's habeas petition only if he exhausted state court remedies."). "[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts." O'Sullivan v. Boerckel, 119 S.Ct. 1728, 1732 (1999) (emphasis added); see also Baldwin v. Reese, 124 S.Ct. 1347, 1349 (2004) (to give the State the chance to pass upon and resolve violations of his federal rights, a state prisoner must exhaust his available state remedies before seeking federal habeas relief).
To satisfy the exhaustion requirement, a petitioner must "fairly present" his federal claim to the state courts, i.e., give them a fair opportunity to consider and correct violations of the prisoner's federal rights. See Duncan v. Henry, 115 S.Ct. 887, 888 (1995); Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) (en banc). A state prisoner seeking relief with respect to a California conviction is required to fairly present his federal claims to the California Supreme Court. See Baldwin, 124 S.Ct. at 1349 (a state prisoner must fairly present his claim to a state supreme court having the power of discretionary review); Keating v. Hood, 133 F.3d 1240, 1242 (9th Cir. 1998).
Petitioner alleges, under penalty of perjury, that he has not challenged his conviction and/or sentence in the California Supreme Court. The truth of that allegation is confirmed by the Court's review of the electronically available dockets for the California Supreme Court, which show that Petitioner has not filed any proceeding in the California Supreme Court with respect to his 2012 conviction. Thus, Petitioner has not exhausted his present claims, because they have not been presented to or considered by the California Supreme Court. Accordingly, because the Petition is fully unexhausted, it must be dismissed without prejudice. Rose, 102 S.Ct. at 1205.
For the foregoing reasons, it is plain from the face of the Petition that summary dismissal of the Petition is required by Rule 4, because it is unexhausted. Accordingly, IT IS ORDERED that: the Petition is dismissed, without prejudice, for failure to exhaust available state remedies; and Judgment shall be entered dismissing this action without prejudice.
In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has considered whether a certificate of appealability is warranted in this case. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000). The Court concludes that a certificate ...