United States District Court, E.D. California
ORDER DISMISSING PETITION AND DECLINING TO ISSUE
CERTIFICATE OF APPEALABILITY (ECF No. 1) CLERK TO TERMINATE
MOTIONS AND CLOSE CASE
MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. He
has consented to Magistrate Judge jurisdiction for all
purposes. (ECF No. 5.)
challenges a June 10, 2016 conviction from the Kern County
Superior Court. (Pet., ECF No. 1.) In his petition,
Petitioner states that he did not seek review of the claims
presented in the petition from any state court.
11, 2017, the Court ordered Petitioner to show cause why the
action should not be dismissed for failure to exhaust state
judicial remedies. (ECF No. 4.) Petitioner filed no response
and the time for doing so has passed.
Screening the Petition
of the Rules Governing § 2254 Cases requires the Court
to make 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; Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990). Otherwise, the
Court will order Respondent to respond to the petition. Rule
5 of the Rules Governing § 2254 Cases.
petitioner who is in state custody and wishes to collaterally
challenge his conviction by a petition for writ of habeas
corpus must 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.
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 (legal basis); Kenney v. Tamayo-Reyes,
504 U.S. 1, 9 (1992) (factual basis).
instant petition reflects that Petitioner has not pursued any
state judicial remedies, let alone presented his claims to
the highest state court. He was ordered to show cause why the
petition should not be dismissed for failure to exhaust, and
to address whether his claims had, in fact, been presented to
the California Supreme Court. (ECF No. 4.) He failed to
respond. Because the record before the Court reflects that
Petitioner has failed to exhaust, the Court is unable to
proceed to the merits of the claims. 28 U.S.C. §
2254(b)(1). The Court is required to dismiss the petition.
Certificate of Appealability
prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's dismissal of his
petition; an appeal is only allowed in certain circumstances.
Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003).
The controlling statute in determining whether to issue a
certificate of appealability is 28 U.S.C. § 2253, which
provides as follows:
(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
the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to
another district or place for commitment or trial a person
charged with a criminal offense against the United States, or
to test the ...