Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable James V. Selna, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
INTRODUCTION
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on November 10, 2015. The Petition purports to challenge a Los Angeles Superior Court conviction (Petition at 2). According to the Petition: (1) Petitioner's direct appeal is still pending in the California Court of Appeal; and (2) Petitioner has not yet filed anything in the California Supreme Court (Petition at 3-7). It thus appears from the face of the present Petition that Petitioner has failed to exhaust available state remedies as to any of the claims alleged in the Petition. Accordingly, the Petition should be denied and dismissed without prejudice, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
DISCUSSION
A federal court will not grant a state petitioner's petition for writ of habeas corpus unless it appears that the petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b)-(c); Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). "Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." O'Sullivan v. Boerckel, 526 U.S. at 844. The exhaustion requirement seeks to avoid "the unseemliness of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." Id. at 844-45 (citations, internal brackets and quotations omitted). Petitioner bears the burden to show compliance with the exhaustion requirement. See, e.g., Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981), cert. denied, 455 U.S. 1023 (1982); see also Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir.), cert. denied, 132 S.Ct. 426 (2011); Morgan v. Superior Court of Los Angeles, 2012 WL 6140213, at *2 (C.D. Cal. Oct. 31, 2012), adopted, 2012 WL 6178430 (C.D. Cal. Dec. 11, 2012).
"State remedies have not been exhausted unless... the highest state court has disposed of the claim on the merits...." Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979) (citation omitted). According to the present Petition, the California Supreme Court has not yet adjudicated the merits of any of Petitioner's claims. Accordingly, all of Petitioner's claims remain unexhausted.
In certain circumstances, the Court has authority to stay a "mixed" petition, that is, a petition containing both exhausted and unexhausted claims. See Rhines v. Weber, 544 U.S. 269 (2005) ("Rhines"); King v. Ryan, 564 F.3d 1133, 1143 (9th Cir.), cert. denied, 558 U.S. 887 (2009) (stay procedure authorized by Kelly v. Small, 315 F.3d 1063 (9th Cir.), cert. denied, 548 U.S. 1042 (2003), overruled on other grounds, Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007) ("Kelly"), remains available after Rhines). However, the present Petition is not mixed; it is completely unexhausted. The Court cannot stay a completely unexhausted petition. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (Rhines stay inappropriate); Dimitris v. Virga, 2012 WL 5289484, at *4 & n.3 (C.D. Cal. Feb. 16, 2012), adopted, 2012 WL 5267741 (C.D. Cal. Oct. 22, 2012) (Rhines and Kelly stays inappropriate); Jarrar v. Barnes, 2009 WL 2394361, at *1 n.1 (E.D. Cal. Aug. 4, 2009) (Kelly stay inappropriate); Tappin v. United States District Court, 2008 WL 686555, at *8 (E.D. Cal. Mar. 11, 2008) (same). Therefore, the Petition must be dismissed without prejudice.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition without prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No noticeof appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.