Opinion
No. C 07-00387 CW (PR).
March 25, 2008
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (Docket no. 4)
Petitioner, a state prisoner, has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging as a violation of his constitutional rights the denial of parole by the California Board of Parole Hearings (Board). In an Order dated May 23, 2007, the Court ordered Respondent to answer the petition or to file a dispositive motion. Respondent has filed a motion to dismiss the petition on the grounds that Petitioner has not exhausted his state remedies and has procedurally defaulted on his claims. Petitioner has filed an opposition to the motion, and Respondent has filed a reply to the opposition.
For the reasons discussed below, the Court GRANTS the motion to dismiss.
BACKGROUND
In 1990, Petitioner was convicted of second degree murder. He was sentenced to a term of fifteen years to life in state prison.
In January, 2006, the Board found that Petitioner was unsuitable for parole. Petitioner sought habeas relief from the Orange County Superior Court, and his petition was denied on June 15, 2006. (Pet. at 4.) Petitioner filed a habeas corpus petition in the California Court of Appeal. The petition was denied on August 10, 2006. (Id. at 4-5.)
On September 5, 2006, Petitioner filed a petition for review in the California Supreme Court. In response, the California Supreme Court's clerk sent Petitioner two letters dated September 5, 2006 and November 2, 2006. (Resp't Exs. 1, 2.) The first letter stated that his petition was untimely under court rules, and the second stated that he could not be relieved from default under court rules because, given the length of time that had elapsed, the court no longer had jurisdiction to consider a petition for review. (Id.) In both letters, the clerk also advised Petitioner that he could file an original proceeding in the form of a "direct writ of habeas corpus." (Id.) Both times the clerk enclosed copies of the form approved by the judicial council for this purpose. (Id.)
On January 19, 2007, Petitioner filed a federal habeas petition in this Court instead of filing a state habeas petition in the California Supreme Court as directed.
DISCUSSION
Respondent moves to dismiss the petition on the ground that it is unexhausted because Petitioner did not fairly present his claims for review to the California Supreme Court. Petitioner maintains that his claims were fairly presented, and, even if they were not, they are exhausted because no further avenue of state court review remains available to him.
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). The State's highest court must be given an opportunity to rule on the claims even if review is discretionary. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke "one complete round of the State's established appellate review process").
As a general rule, a petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts in the manner required by the state courts, thereby affording the state courts a meaningful opportunity to consider allegations of legal error. Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004), cert. denied, 545 U.S. 1146 (2005). When a habeas petition is denied because of procedural defects that may be remedied in state court, the claims have not been "fairly presented" to the state court and are not exhausted. See Harris v. Superior Court, 500 F.2d 1124, 1126 (9th Cir. 1974), cert. denied, 420 U.S. 973 (1975). The action must be dismissed unless the federal court makes an independent determination that the claims were "fairly presented" to the state court despite the procedural denial. See Kim v. Villalobos, 799 F.2d 1317, 1319-20 (9th Cir. 1986) (holding that petitioner's claims had been fairly presented to California Supreme Court despite rejection of petition for lack of specificity where petitioner had twice filed habeas petitions with California Supreme Court and could not articulate claims with any greater particularity than had already been done).
If a petitioner's available state remedies have not been exhausted as to all claims, the district court must dismiss the petition. See Rose, 455 U.S. at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). A dismissal solely for failure to exhaust is not a bar to returning to federal court after exhausting available state remedies. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).
Here, Petitioner did not fairly present his claims for review to the California Supreme Court. The letters from the California Supreme Court's clerk reflect that his petition for review was rejected as untimely. While Petitioner has presented his claims to the California Supreme Court in a petition for review, mere presentation does not constitute exhaustion. Despite the procedural denial of his petition for review, Petitioner did not fairly present his claims to the California Supreme Court because he still could have done so by way of a petition for a writ of habeas corpus as directed. Accordingly, Petitioner's claims are unexhausted. See Kim, 799 F.2d at 1319 (claims unexhausted where denial on procedural grounds can be cured in a renewed state petition).
The Court GRANTS Respondent's motion to dismiss the petition.
CONCLUSION
For the reasons stated above, Respondent's motion to dismiss (docket no. 4) is GRANTED. The petition is DISMISSED for failure to exhaust state remedies.This dismissal is without prejudice. Petitioner may exhaust state remedies by promptly filing an original petition for a writ of habeas corpus in the California Supreme Court. If that court denies his petition he may then promptly file a petition for a writ of habeas corpus in this Court.
The Clerk of the Court shall enter judgment in accordance with this Order, terminate all pending motions, and close the file.
This Order terminates Docket no. 4.
IT IS SO ORDERED.