United States District Court, E.D. California
KENDALL J. NEWMAN JUDGE.
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.
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.)
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.)
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.)
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.)
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.)
Standard of Review
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).
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.) 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.)
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