United States District Court, E.D. California
HAKIM R. HASAN, Petitioner,
STATE OF CALIFORNIA, Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
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.
Order to Show Cause and Response
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.
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).
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,  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).
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
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.
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.
HEREBY RECOMMENDED that this action be dismissed without
prejudice for ...