Opinion
No. C 03-5674 CRB (PR) (Related Case No. C 03-0607CRB (PR))
December 19, 2003
ORDER OF DISMISSAL
On February 12, 2003, petitioner filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 which was assigned to the undersigned as civil case number 03-0607. See Jaimes v. Lamarque, No. C 03-0607 CRB (PR) (N.D. Cal. filed Feb. 12, 2003).
Per order filed on April 4, 2003, the court found that the petition stated several colorable claims for relief, including instructional error, juror misconduct and ineffective assistance of trial and appellate counsel, and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent instead moved to dismiss the petition on the ground that petitioner did not exhaust state judicial remedies as to all claims other than his claim of instructional error (specifically his claim that it was error to instruct the jury with CALJIC No. 17.41.1).
Petitioner conceded that he had not exhausted most of his claims, and requested that the court allow him to amend the petition to delete the unexhausted claims and hold the amended petition in abeyance pending exhaustion of the unexhausted claims.
Per order filed on September 5, 2003, the court granted respondent's motion to dismiss and, pursuant to Ford v. Hubbard, 330 F.3d 1086 (9th Cir. 2003), struck all claims other than petitioner's CALJIC No. 17.41.1 instructional error claim and stayed the petition pending exhaustion of petitioner's unexhausted claims. The court also administratively closed the case and explained: "Nothing further will take place in this matter until petitioner exhausts the unexhausted claims, and, within 30 days thereafter, moves to reopen the case, lift the court's stay and amend the stayed petition to add the exhausted claims." Jaimes v. Lamarque, No. 03-0607 CRB (PR), slip op. at 2-3 (N.D. Cal. Sept. 5, 2003) (order).
On December 16, 2003, petitioner filed a new petition for a writ of habeas corpus under 28 U.S.C. § 2254 which was assigned to the undersigned as civil case number 03-5674. He alleges that he has now exhausted state judicial remedies as to all of his claims. However, a review of the record makes clear that petitioner has only presented his claims to the Santa Clara County Superior Court and the California Court of Appeal. In order to exhaust state judicial remedies, petitioner must present the Supreme Court of California with an opportunity to consider and rule on his claims. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (state's highest court must be given opportunity to rule on claims even if review is discretionary); Larche v. Simons, 53 F.3d 1068, 1071-72 (9th Cir. 1995) (Supreme Court of California must be given at least one opportunity to review state prisoners' federal claims). The petition for a writ of habeas corpus therefore is DISMISSED without prejudice to returning to federal court after state judicial remedies are exhausted.
Petitioner is advised that, after he exhausts state judicial remedies, he should file a motion "to reopen the case, lift the court's stay and amend the stayed petition to add the exhausted claims" in C 03-0607 CRB (PR). He need only allege that he has now exhausted all of his claims and that, pursuant to the court's earlier order, he now wishes to proceed with all of his claims. In addition, petitioner should submit with the motion a proposed First Amended Petition for a Writ of Habeas Corpus containing all of his claims. The petition must include the case number C 03-0607 CRB (PR) and the words FIRST AMENDED PETITION FOR A WRIT OF HABEAS CORPUS on the first page.
The clerk shall file a copy of this order in both C 03-0607 and C 03-5674, and close the file, and terminate all motions as moot, in C 03-5674. (All future filings shall take place in C 03-0607 only
SO ORDERED.