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Hasan v. State

United States District Court, E.D. California

December 5, 2019

HAKIM R. HASAN, Petitioner,
v.
STATE OF CALIFORNIA, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

         Petitioner appears to be a former prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2018 conviction in the Sacramento County Superior Court. (ECF No. 1 at 1.) By order dated August 9, 2019, the court directed petitioner to show cause in writing why this case should not be dismissed for failure to properly exhaust state remedies. (ECF No. 4.) For the reasons set forth below the court will recommend that the petition be dismissed.

         EXHAUSTION

         I. Order to Show Cause and Response

         Petitioner seeks to challenge his 2018 conviction in the Sacramento Superior Court. (ECF No. 1 at 1.) Upon screening the petition, the court determined that it appeared petitioner had not fully exhausted his claims by presenting them to the California Supreme Court. (ECF No. 4.) //// The court granted petitioner thirty days to show in writing that he had exhausted state court remedies. Thereafter, petitioner filed a document reiterating the allegations in the petition along with roughly sixty pages of documents related to the state court criminal proceedings he seeks to challenge. (ECF No. 5.)

         II. Analysis

         Petitioner has the burden of demonstrating that he has exhausted available state remedies. See, e.g., Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972) (per curium); Rollins v. Superior Court of L.A., 706 F.Supp.2d 1008, 1011 (C.D. Cal. 2010). The Ninth Circuit has held that a federal court may raise the failure to exhaust issue sua sponte and may summarily dismiss on that ground. See Stone v. San Fracisco, 968 F.2d 850, 856 (9th Cir. 1992), cert. denied, 506 U.S. 1081 (1993); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1982) (per curium), cert. denied, 455 U.S. 1023 (1982); see also Granberry v. Greer, 481 U.S. 129, 134-35 (1987). Once 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).

         The petition (ECF No. 1), exhibits, (ECF No. 3), and the response to the order to show cause (ECF No. 5) fail to show that petitioner's claim has been presented to and disposed of by the California Supreme Court. Further, the court may take judicial notice of court records, and the California Supreme Court records, [1] reflect that petitioner has not sought any relief from the California Supreme Court or any other California Appellate court. See Fed.R.Evid. 201 (court may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned); Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (a court may take judicial notice of undisputed matters of public record including documents on file in federal or state courts). Accordingly, the court concludes that petitioner has not presented his claims in the petition to the California Supreme Court. Consequently, it appears that petitioner's claims are unexhausted. Because petitioner has not exhausted the court must dismiss the petition. See Rose v. Lundy, 455 U.S. 509, 521-22 (1982) (The court cannot consider a petition that has not been exhausted).

         CUSTODY REQUIREMENT

         Even if petitioner had shown he exhausted state court remedies, he may only proceed with a federal habeas corpus petition under 28 U.S.C. § 2254 if he is “in custody.” See 28 U.S.C. §§ 2241(c), 2254(a). If petitioner has already served his sentence, then he is not “in custody” and federal habeas relief is not available to him. Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curium) (a petitioner is not “in custody” for purposes of habeas relief if his sentence has fully expired); Bailey v. Hill, 599 F.3d 976, 978-79 (9th Cir. 2010).

         Based on the address provided and the length of petitioner's sentence, it appears that he is no longer in custody. Accordingly, it is likely that petitioner cannot meet the in custody requirement and therefore the court cannot grant the habeas relief sought in this action.

         CONCLUSION

         For the reasons set forth above, IT IS HEREBY ORDERED that that the Clerk of the Court is directed to randomly assign a district judge to this action.

         IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice for ...


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