Opinion
Case No. EDCV 15-101-CJC(AJW)
01-26-2015
TRAVARE MONROE GRANT, Petitioner, v. MATTHEW CATE, et al., Respondents.
MEMORANDUM AND ORDER DISMISSING PETITION WITHOUT PREJUDICE
Petitioner filed this petition for a writ of habeas corpus on January 16, 2015. Petitioner alleges that he is entitled to a reduction of his sentence pursuant to Proposition 47, which was enacted in November, 2014. [Petition at 3]. For the following reasons, the petition is subject to summary dismissal. See Rule 4 of the Rules Governing Section 2254 Cases ("if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition
A state prisoner is required to exhaust all available state court remedies before a federal court may grant habeas relief. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The exhaustion requirement is satisfied when the substance of a petitioner's federal claim has been fairly presented to the state's highest court. O'Sullivan, 526 U.S. at 844-845.
From the face of the petition, it is clear that petitioner has never presented any of his claims to the California Supreme Court. [See Petition at 5-6]. Therefore, petitioner has not exhausted his state remedies. Although this Court has discretion to stay a mixed habeas corpus petition to allow the petitioner to exhaust his state remedies, see Rhines v. Webber, 544 U.S. 269, 277-278 (2005), it does not have discretion to stay a petition containing only unexhausted claims. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)
Petitioner does not allege that he filed any petition in state court raising his claim based upon Proposition 47, and reference to the California Appellate Courts Case Information reveals none. See http://appellatecases.courtinfo.ca.gov.
("Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to the petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust."); Davis v. Adams, 2010 WL 1408290, *2 (C.D.Cal. 2010) (stating that a federal court cannot stay a completely unexhausted petition), report and recommendation adopted, 2010 WL 1408292 (C.D.Cal. 2010).
Accordingly, the petition for a writ of habeas corpus is dismissed without prejudice.
It is so ordered. Dated: January 26, 2015
/s/_________
Cormac J. Carney
United States District Judge