United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a former state prisoner proceeding without counsel on a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. He has paid the filing fee.
of the Rules Governing Section 2254 Cases calls for dismissal
of a petition if it plainly appears from the petition 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 here must be dismissed, without leave to
amend, because the claims raised therein are not
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.
the “Exhaustion” section of the amended petition,
petitioner argues that exhaustion of his actual innocence
claim in the state courts would be “futile” and
that he should be “excused from the exhaustion
requirement” because of the “flagrant
Constitutional violation” caused by the prosecuting
attorney, the public defender, and the judge. ECF No. 7,
§ VII, ¶¶ 7.9, 7.12. Petitioner asserts that
because the “system . . . has failed” him, he
“should have the option to have [his] claim[ ] heard in
the Federal district court . . . .” Id. ¶
7.13-7.14. He also confirms that he never presented any of
his federal claims to the state courts. Id. at
25, ¶ 13.
light of these representations, it appears from the petition
that petitioner's claims are totally unexhausted.
Although petitioner believes that the system
“failed” him, he has not shown that he was
prevented from presenting his claims to the state courts, or
that any appeal to the state courts would be futile.
Petitioner is not entitled to “bypass the state courts
simply because he thinks they will be unsympathetic . . .
.” Engle v. Isaac, 456 U.S. 107, 109 (1982).
Accordingly, petitioner has failed to exhaust state court
remedies, as 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 the Clerk of the Court shall
randomly assign a United States District Judge to this
IT IS HEREBY RECOMMENDED that the petition be dismissed
without leave to amend and that all outstanding motions be
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, any party may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendations.” Failure to
file objections within the specified time may waive the right
to appeal the District Court's order. Turner v.
Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez
v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his
objections petitioner may address whether a certificate of
appealability should issue in the event he files an appeal of
the judgment in this case. See Rule 11, Federal
Rules Governing § 2254 Cases (the district court must
issue or deny a certificate of appealability when it enters a
final order adverse to the applicant).
 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
850, 856 (9th Cir. 1992).
 In doing so, petitioner refers the
court to an “in-camera inspection document, ”
which does not comply with the court's local rules
governing requests to seal and requests for protective
orders. ECF No. 7 at 25, ¶ 13; see also E.D.
Cal. Local Rules 140 & 141.1. The unsigned document (ECF
No. 13), which also fails to comply with Rule 11 of the
Federal Rules of Civil Procedure, does not offer any basis
for excusing petitioner from the exhaustion
 For ease of reference, all references
to page numbers in the petition are to those assigned via the