O'Neill v. Price

          ORDER

          KENDALL J. NEWMAN JUDGE.

         I. Introduction

         Petitioner is a state prisoner, proceeding without counsel. Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Respondent moves to dismiss this federal habeas action, and lodged pertinent portions of petitioner’s state court records. Petitioner filed an opposition. For the reasons set forth below, respondent’s motion is granted, and the petition is dismissed without prejudice.

         II. Prior Proceedings

         Petitioner was convicted of felony driving under the influence with priors, and driving with a blood alcohol content over 0.08%. (ECF No. 1 at 26.) A number of sentencing enhancement allegations were found true. On May 20, 2015, petitioner was sentenced to a determinate term of five years in state prison. (ECF No. 1 at 26-27.)

         On June 12, 2015, petitioner filed an appeal in the California Court of Appeal. On April 22, 2016, the case was fully briefed, and the appeal remains pending. People v. O’Neill, Case No. C079461 (Cal.Ct.App.) (ECF No. 1 at 162-79; Respondent’s Lodged Document (“LD”) 2.)

         On June 8, 2015, petitioner filed a petition for writ of habeas corpus in the El Dorado County Superior Court. (ECF No. 1 at 31.) On September 4, 2015, the El Dorado County Superior Court denied the petition in a reasoned decision. (ECF No. 1 at 28-30; 370-72.)

         On October 7, 2015, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District. (LD 5.) On October 15, 2015, the California appellate court summarily denied the petition. (ECF No. 1 at 37.)

         On November 9, 2015, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (LD 7.) On February 3, 2016, the California Supreme Court denied the petition without comment. (ECF No. 1 at 38, 181.)

         III. Standard of Review

         Under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court may dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court. . . .” A motion to dismiss a petition for writ of habeas corpus is construed as a request for the Court to dismiss under Rule 4 of the Rules Governing Section 2254 Cases. O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990).

         IV. Discussion

         Respondent moves to dismiss this federal habeas action because direct review is still pending in the state courts, rendering the instant petition premature. In his petition, petitioner concedes that his “presentence credit appeal is still pending in the Third District Court of Appeal.” (Form petition at p. 8.)^[2] Petitioner opposes the motion, claiming that on June 25, 2015, he filed a motion seeking only in-custody credits and nothing further. (ECF No. 12 at 1.) He argues that “on appeal when a person seeks post-sentence credits, special circumstances that accompany habeas corpus [are] unnecessary, ” and provides a copy of his abstract of judgment which he claims “reflects the basis for his appeal.” (Id.)

         As a matter of comity, a federal court will not grant habeas relief to a person held in state custody unless he has exhausted all available state judicial remedies on every ground presented in his habeas petition. 28 U.S.C. § 2254(b)(1)(A); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (the exhaustion doctrine is designed to give state courts a full and fair opportunity to resolve any federal constitutional claims before they are presented to the federal courts). To exhaust state judicial remedies, each claim must be fairly presented to and disposed of on the merits by the state’s highest court. Rose v. Lundy, 455 U.S. 509, 518-22 (1982). A ...