United States District Court, E.D. California
DAVID M. SEALE, Petitioner,
FELIX M. VASQUEZ, Warden, Wasco State Prison, Respondent.
ORDER DISMISSING CASE FOR FAILURE TO EXHAUST
K. OBERTO UNITED STATES MAGISTRATE JUDGE
David M. Seale is a state prisoner proceeding pro se
with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. Because Petitioner has not yet exhausted
his California state remedies, the Court must dismiss the
of the Rules Governing § 2254 Cases requires the Court
to conduct a preliminary review of each petition for writ of
habeas corpus. The Court must dismiss a petition "[i]f
it plainly appears from the petition . . . that the
petitioner is not entitled to relief." Rule 4 of the
Rules Governing 2254 Cases; see also Hendricks v.
Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A
petition for habeas corpus should not be dismissed without
leave to amend unless it appears that no tenable claim for
relief can be pleaded were such leave to be granted.
Jarvis v. Nelson, 440 F.2d 13, 14 (9th
Procedural and Factual Background
to his petition, in Kern County Superior Court on May 3,
2016, Petitioner pleaded no contest to a charge of corporal
injury to his spouse (Cal. Penal Code § 273.5(9)), and
was sentenced to two years in prison. The petition includes a
copy of an unfiled California state notice of appeal dated
June 14, 2016.
Exhaustion of State Remedies
petitioner who is in state custody and wishes to collaterally
challenge his conviction by a federal petition for writ of
habeas corpus must first exhaust state judicial remedies. 28
U.S.C. § 2254(b)(1). The exhaustion doctrine is based on
comity to the state court and gives the state court the
initial opportunity to correct the state's alleged
constitutional deprivations. Coleman v. Thompson,
501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S.
509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158,
1163 (9th Cir. 1988).
petitioner can satisfy the exhaustion requirement by
providing the highest state court with a full and fair
opportunity to consider each claim before presenting it to
the federal court. Duncan v. Henry, 513 U.S. 364,
365 (1995); Picard v. Connor, 404 U.S. 270, 276
(1971); Johnson v. Zenon, 88 F.3d 828, 829
(9th Cir. 1996). A federal court will find that
the highest state court was given a full and fair opportunity
to hear a claim if the petitioner has presented the highest
state court with the claim's factual and legal basis.
Duncan, 513 U.S. at 365; Kenney v.
Tamayo-Reyes, 504 U.S. 1, 8 (1992). The petitioner must
also have specifically informed the state court that he was
raising a federal constitutional claim. Duncan, 513
U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669
(9th Cir. 2000), amended, 247 F.3d 904
(2001); Hiivala v. Wood, 195 F.3d 1098, 1106
(9th Cir. 1999); Keating v. Hood, 133
F.3d 1240, 1241 (9th Cir. 1998).
does not contend that he has presented his claims to the
California Supreme Court or to any other California state
court. Although non-exhaustion of state court remedies has
been viewed as an affirmative defense, it is the
petitioner’s burden to prove that state judicial
remedies were properly exhausted. 28 U.S.C. §
2254(b)(1)(A); Darr v. Burford, 339 U.S. 200, 218-19
(1950), overruled in part on other grounds in Fay v.
Noia, 372 U.S. 391 (1963); Cartwright v. Cupp,
650 F.2d 1103, 1104 (9th Cir. 1981). If available
state court remedies have not been exhausted as to all
claims, a district court must dismiss a
petition. Rose v. Lundy, 455 U.S. 509,
515-16 (1982). See also Raspberry v. Garcia, 448
F.3d 1150, 1154 (9th Cir. 2006); Jiminez v.
Rice 276 F.3d 478, 481 (9th Cir. 2001) (both
holding that when none of a petitioner’s claims has
been presented to the highest state court as required by the
exhaustion doctrine, the Court must dismiss the petition).
Certificate of Appealability
petitioner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his
petition, but may only appeal in certain circumstances.
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).
The controlling statute in determining whether to issue a
certificate of appealability is 28 U.S.C. § 2253, which
(a) In a habeas corpus proceeding or a proceeding under
section 2255 before a district judge, the final order shall
be subject to review, on appeal, by the court of appeals for