United States District Court, E.D. California
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
is a county prisoner proceeding without counsel on a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. He has applied for leave to proceed in
forma pauperis. See 28 U.S.C. § 1915(a).
Examination of the in forma pauperis affidavit
reveals that petitioner is unable to afford the costs of
Rule 4 of the Rules Governing Section 2254 Cases a district
court should dismiss a petition if it plainly appears from it
and any attached exhibits that the petitioner is not entitled
to relief. See Gutierrez v. Griggs, 695 F.2d 1195,
1198 (9th Cir. 1983) (Rule 4 “explicitly allows a
district court to dismiss summarily the petition on the
merits when no claim for relief is stated”). Moreover,
the Advisory Committee Notes to Rule 8 of the Rules Governing
Section 2254 Cases indicate that the court may dismiss a
petition for writ of habeas corpus on its own motion under
Rule 4. However, the court should not dismiss a petition
without leave to amend unless it appears that no tenable
claim for relief can be pleaded were such leave granted.
Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
For the reasons explained below, the petition is dismissed,
without leave to amend, on the ground that the claims raised
therein are not exhausted.
district court may not grant a petition for a writ of habeas
corpus unless “the applicant has exhausted the remedies
available in the courts of the State, ” or unless there
is no State corrective process or “circumstances exist
that render such process ineffective to protect the rights of
the applicant.” 28 U.S.C. § 2254(b)(1). A
petitioner satisfies the exhaustion requirement by presenting
the “substance of his federal habeas corpus
claim” to the state courts. Picard v. Connor,
404 U.S. 270, 278 (1971); see also Duncan v. Henry,
513 U.S. 364, 365 (1995). For a California prisoner to
exhaust, he must present his claims to the California Supreme
Court on appeal in a petition for review or on
post-conviction in a petition for a writ of habeas corpus.
See Carey v. Saffold, 536 U.S. 223, 239-40 (2002)
(describing California's habeas corpus procedure);
Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999)
(to exhaust, prisoner must present claims on appeal to
California Supreme Court in a petition for review). Unless
the respondent specifically consents to the court
entertaining unexhausted claims, a petition containing such
claims must be dismissed. See 28 U.S.C. §
2254(b)(3); Picard, 404 U.S. at 275.
petitioner challenges a judgment of conviction entered
against him in 2009 in the Solano County Superior Court on
charges of transportation of a controlled
substance. ECF No. 1 at 2. According to the petition,
petitioner did not appeal his conviction or sentence and did
not seek review in the California Supreme Court. Id.
at 5. The petition also shows that petitioner has not filed
any other petitions with respect to his conviction.
Id. at 6. Petitioner explains that he did not appeal
and attributes the delay in challenging his conviction to his
belief that “recent changes in p.c. 11352 statute
provide retroactive remedy to invalidate sentence.”
Id. at 5.
light of these representations, it appears from the petition
that petitioner's claims are totally unexhausted.
Although he attempts to excuse any delay in his challenge to
his conviction, he has not shown that he was prevented from
first presenting his claims to the state courts, or that any
appeal to the state courts would be futile. Thus, petitioner
has failed to exhaust state court remedies and the California
Supreme Court has not yet had the opportunity to resolve
petitioner's claims on their merits. See Greene v.
Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002). This
action must therefore be summarily dismissed. See
Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)
(“Once a district court determines that a habeas
petition contains only unexhausted claims, . . . it may
simply dismiss the habeas petition for failure to
IT IS HEREBY ORDERED that:
1. The petition is dismissed without leave to amend;
2. The Clerk is directed to close the case; and
3. The court declines to issue a certificate of
 This proceeding was referred to this
court by Local Rule 302 pursuant to 28 U.S.C. §
636(b)(1) and is before the undersigned pursuant to
petitioner's consent. See 28 U.S.C. § 636;
see also E.D. Cal. Local Rules, Appx. A, at
 The court may raise the failure to
exhaust issue sua sponte and may summarily dismiss
on that ground. See Stone v. San Francisco, 968 F.2d