Summary
dismissing § 2254 petition as unexhausted where "at the time [petitioner's § 2254] petition was filed he had not presented his present claims to the highest state court available, the Supreme Court of California."
Summary of this case from Carrascosa v. HoffmanOpinion
No. C 01-4172 PJH (PR)
July 22, 2002
ORDER OF DISMISSAL; DENIAL OF LEAVE TO PROCEED IN FORMA PAUPERIS
Petitioner, a California state inmate, has filed a petition for a writ of habeas corpus. He also requests leave to proceed in forma pauperis.
An application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court may not be granted unless the prisoner has first exhausted state judicial remedies, either by way of a direct appeal or in collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every issue he or she seeks to raise in federal court. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Petitioner has the burden of pleading exhaustion in his habeas petition. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
In California, the supreme court, intermediate courts of appeal, and superior courts all have original habeas corpus jurisdiction. Nino v. Galaza, 183 F.3d 1003, 1006 n. 2 (9th Cir. 1999). Although a superior court order denying habeas corpus relief is non-appealable, a state prisoner may file a new habeas corpus petition in the court of appeals. Id. If the court of appeals denies relief, the petitioner may seek review in the California Supreme Court by way of a petition for review, or may instead file an original habeas petition in the supreme court. Id. at n. 3.
In his petition petitioner states that he appealed to the Court of Appeal of California, which affirmed his conviction. He did not seek review from the Supreme Court of California. He also alleges that he sought state habeas relief in the Superior Court of California and the Court of Appeal of California, and that at the time the petition was filed he had another state petition pending in the Supreme Court of California. It is thus clear that at the time the petition was filed he had not presented his present claims to the highest state court available, the Supreme Court of California.
The appropriate time to assess whether a prisoner has exhausted his state remedies is when the federal petition is filed. Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999); Brown v. Maass, 11 F.3d 914, 915 (9th Cir. 1993). Completing exhaustion after a federal petition is filed does not save it. Gatlin, 189 F.3d at 889. Thus, it is clear that because petitioner had not exhausted his present claims at the time he filed this petition, it must be dismissed.
Petitioner has also filed another habeas petition, C 02-1322 PJH (PR), in which he raises issues other than those raised in this petition. The dismissal of this petition for failure to exhaust appears to render C 02-1322 PJH (PR) not second or successive, and thus not subject to dismissal on that ground. See Slack v. McDaniel, 529 U.S. 473, 485-86 (2000); Stewart v. Martinez-Villareal, 523 U.S. 637, 644 (1998); Anthony v. Cambra, 236 F.3d 568, 572 (9th Cir. 2000). If petitioner exhausted the issues presented in this case after this petition was filed, he may wish to consider amending the petition in C 02-1322 PJH (PR) to include them.
Leave to proceed in forma pauperis (doc 3) is DENIED. This case is DISMISSED without prejudice. Petitioner's motions for appointment of counsel (doc 4) and for a stay of state court proceedings (doc 2) are DENIED as moot.
The Clerk shall close the file.
IT IS SO ORDERED.