United States District Court, C.D. California
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF
HONORABLE PHILIP S. GUTIERREZ UNITED STATES DISTRICT JUDGE
October 12, 2019, petitioner Clifford Chaun Loyer, a state
prisoner who is proceeding pro se, signed a Petition
for Writ of Habeas Corpus by a Person in State Custody
(“Petition”) which was formally filed on October
24, 2019. Petitioner challenges his conviction in Orange
County Superior Court Case No. 16WF1726 on four somewhat
overlapping grounds: (1) his warrantless arrest on August 2,
2016 violated the Fourth Amendment; (2) his arrest and
detention in jail for many hours without booking,
fingerprinting, photographing or a phone call, and the use of
force against him violated his Fifth Amendment right to due
process; (3) his warrantless arrest on August 5, 2016
violated the Fourth Amendment; and (4) his arrests on August
2, 2016 and August 5, 2016 were made without a warrant or
probable cause and violated the Fourth Amendment. (Petition
at 5-6). It plainly appears from the face of the Petition
that it is wholly unexhausted as it reflects that petitioner
has not presented any of his claims to the California Supreme
Court. (Petition at 5-6). Accordingly, petitioner is not
entitled to federal habeas relief on his claims at this time.
As explained below, the Court dismisses this action without
prejudice pursuant to Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts, which
requires a judge promptly to examine a federal habeas
petition, and to dismiss it if “it plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court. . . .”
28 U.S.C. § 2254(b), habeas relief may not be granted
unless a petitioner has exhausted the remedies available in
state court. Exhaustion requires that the
petitioner's contentions were fairly presented to the
state courts, Ybarra v. McDaniel, 656 F.3d 984, 991
(9th Cir. 2011), cert. denied, 568 U.S. 959 (2012),
and disposed of on the merits by the highest court of the
state, Greene v. Lambert, 288 F.3d 1081, 1086 (9th
Cir. 2002). As a matter of comity, a federal court will not
entertain a habeas petition unless the petitioner has
exhausted the available state judicial remedies on every
ground presented in it. See Rose v. Lundy, 455 U.S.
509, 518 (1982). A federal court may raise the
failure-to-exhaust issue sua sponte and summarily
dismiss on that ground. See Granberry v. Greer, 481
U.S. 129, 134-35 (1987); Stone v. City & County of
San Francisco, 968 F.2d 850, 856 (9th Cir. 1991),
cert. denied, 506 U.S. 1081 (1993).
has the burden of demonstrating he has exhausted available
state remedies. See, e.g., Williams v.
Craven, 460 F.2d 1253, 1254 (9th Cir. 1972) (per
curiam); Rollins v. Superior Court, 706 F.Supp.2d
1008, 1011 (C.D. Cal. 2010).
present proceeding, the Petition affirmatively reflects that
petitioner has not presented his claims to the California
Supreme Court. (Petition at 5-6). Accordingly, it plainly
appears from the face of the Petition that petitioner cannot
meet his burden to demonstrate that he has exhausted his
claims because they have not been disposed of by the
California Supreme Court.
it is clear that the California Supreme Court has not
resolved petitioner's claims, the exhaustion requirement
may nonetheless be satisfied if petitioner's claims are
clearly procedurally barred under state law. See Castille
v. Peoples, 489 U.S. 346, 351-52 (1989); Johnson v.
Zenon, 88 F.3d 828, 831 (9th Cir. 1996). In this case,
it is not at all “clear” that the California
Supreme Court would deem petitioner's claims procedurally
barred under state law. See In re Harris, 5 Cal.4th
813, 825 (1993) (“[H]abeas corpus has become a proper
remedy in this state to collaterally attack a judgment of
conviction which has been obtained in violation of
fundamental constitutional rights.”) (citations
omitted); People v. Sorenson, 111 Cal.App. 2d 404,
405 (1952) (claims that fundamental constitutional rights
have been violated may be raised by state habeas petition).
However, this Court expresses no opinion regarding whether
consideration of petitioner's claims might be foreclosed
by the principles discussed in In Re Clark, 5
Cal.4th 750, 763-87 (1993). The California Supreme Court
should evaluate the matter in the first instance. Even if an
applicable state procedural bar exists, the California
Supreme Court nevertheless might choose to reach the merits
of petitioner's claims. See, e.g., Park v.
California, 202 F.3d 1146, 1151-52 (9th Cir.), cert.
denied, 531 U.S. 918 (2000).
as in this case, a Court determines that a habeas petition
contains only unexhausted claims, it may dismiss the petition
for failure to exhaust. Rasberry v. Garcia, 448 F.3d
1150, 1154 (9th Cir. 2006). Accordingly, because the Petition
in this case is wholly unexhausted, dismissal thereof on this
ground is appropriate.
THEREFORE ORDERED that the Petition is dismissed without
prejudice and that Judgment be entered