Opinion
Erick Alexander, Petitioner, Pro se, Jamestown, CA.
For People of The State of California, Respondent: Susan S Kim, LEAD ATTORNEY, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA; Kenneth C Byrne, CAAG - Office of the Attorney General, California Department of Justice - Supervising Deputy AG, Los Angeles, CA.
ORDER: GRANTING MOTION TO DISMISS; SUMMARILY DISMISSING PETITION WITHOUT PREJUDICE; AND DENYING CERTIFICATE OF APPEALABILITY
FERNANDO M. OLGUIN, UNITED STATES DISTRICT JUDGE.
On June 16, 2015, Petitioner filed a 28 U.S.C. § 2254 habeas petition in this district (" Petition"). On August 26, 2015, Respondent filed a " Motion To Dismiss Petition, " which alleges that the Petition is fully unexhausted, because the two claims pleaded therein have not been presented to the California Supreme Court (" Motion"). Pursuant to Paragraph 5 of the February 27, 2015 Order Requiring Response in this case [Dkt. No. 3], if Petitioner opposed the Motion, he was required to file an Opposition by no later than September 25, 2015. Petitioner has neither filed an Opposition to the Motion nor requested additional time to do so. The Court therefore presumes that Petitioner does not oppose the Motion. See also Local Rule 7-12.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides that a petition for writ of habeas corpus " must" be summarily dismissed " [i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Here, it plainly appears that the Petition is fully unexhausted. Therefore, the Petition must be dismissed, for the following reasons.
BACKGROUND
On July 3, 2013, Petitioner was charged with two drug offense counts. The information alleged that Petitioner had a prior narcotics conviction and a prior " strike" conviction. (Motion Ex. A.)
On January 27, 2014, Petitioner pleaded nolo contendere to the charges. He admitted the prior " strike" allegation, waived his " appeal rights, " and waived " all back time credits." Petitioner was sentenced to a total prison term of six years. (Motion Exs. B13-B17, C18-C19.)
On or about May 19, 2014, Petitioner mailed a motion to modify his sentence to the trial court. The trial court denied the motion, finding it to be, inter alia, vague, patently frivolous, unsupported, and without merit. (Motion Ex. E.)
On June 30, 2014, the trial court received a notice of appeal from Petitioner. The trial court advised him that the notice of appeal was untimely, and if he wished to appeal, he was required to seek relief from the California Court of Appeal. (Motion Ex. D.) Petitioner did not do so. (Petition at 3.)
On or about July 30, 2014, Petitioner filed a second motion to modify his sentence and a motion to correct his prison credit calculation in the trial court. On August 25, 2014, the trial court denied both motions for many of the same reasons as before. (Motion Exs. F-G.)
On August 19, 2014, Petitioner mailed a habeas petition to the California Supreme Court. That petition alleged a single claim, namely, that the trial court erred at sentencing by failing to award Petitioner custody credits from June 27, 2013, through February 18, 2014, as well as " post sentence credits of 8 mo. doubled." (Motion Ex. H.) On October 29, 2014, the California Supreme Court denied the petition summarily with a citation to People v. Duvall, 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995). (Motion Ex. I.)
DISCUSSION
Federal courts may not grant habeas relief to a person held in state custody unless the petitioner has exhausted his available state court remedies as to each of the issues presented. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982); Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005) (" We may review the merits of Petitioner's habeas petition only if he exhausted state court remedies."). " [T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts." O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999) (emphasis added); see also Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (to give the State the chance to pass upon and resolve violations of his federal rights, a state prisoner must exhaust his available state remedies before seeking federal habeas relief).
To satisfy the exhaustion requirement, a petitioner must " fairly present" his federal claim to the state courts, i.e., give them a fair opportunity to consider and correct violations of the prisoner's federal rights. See Duncan v. Henry, 513 U.S. 364, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) (en banc). A state prisoner seeking relief with respect to a California conviction is required to fairly present his federal claims to the California Supreme Court. See Baldwin, 124 S.Ct. at 1349 (a state prisoner must fairly present his claim to a state supreme court having the power of discretionary review); Keating v. Hood, 133 F.3d 1240, 1242 (9th Cir. 1998).
Ground One of the Petition alleges an ineffective assistance of counsel claim. Petitioner asserts that: his counsel told Petitioner he had sustained a prior conviction and should admit it; Petitioner did so and received an extra year on his sentence as a result; and Petitioner does not have a prior conviction and would not have admitted he did absent counsel's advice. Petitioner alleges that he presented Ground One to the California Supreme Court through a habeas petition. (Petition at 5 and attached page.) Ground Two is somewhat garbled. Petitioner alleges that his counsel said he would not fight for Petitioner's rights and Petitioner should take the proffered plea deal. Petitioner further alleges that he was deprived of due process, because someone else's prior convictions were attributed to him. Petitioner alleges that he has not presented Ground Two to any state court. (Petition at 5.)
As noted above, Petitioner did not appeal. The sole means by which he can have exhausted any federal habeas claim is through his California Supreme Court habeas petition. That petition alleged a single claim complaining about the failure to award Petitioner custody credits; it did not raise either of the two Grounds set forth in the instant Petition. The Petition, thus, is fully unexhausted. Accordingly, because the Petition is fully unexhausted, it must be dismissed without prejudice. Rose, 102 S.Ct. at 1205.
A fully unexhausted federal habeas petition may not be stayed and must be dismissed. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding that a fully unexhausted petition may not be stayed and observing: " 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."); Jones v. McDaniel, 320 Fed.Appx. 784, 786 (9th Cir. 2009) (affirming the dismissal of a fully unexhausted petition and denial of a stay, because a " Rhines stay is only available for a mixed habeas petition where at least some of the claims have been exhausted, and none of [petitioner's] claims were exhausted"); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (a district court is " 'obliged to dismiss immediately'" a petition that contains no exhausted claims) (citation omitted).
For the foregoing reasons, it is plain that dismissal of the Petition is required by Rule 4, because it is unexhausted. Accordingly, IT IS ORDERED that: the Motion is GRANTED; the Petition is dismissed, without prejudice, for failure to exhaust available state remedies; and Judgment shall be entered dismissing this action without prejudice.
In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has considered whether a certificate of appealability is warranted in this case. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). The Court concludes that a certificate of appealability is unwarranted, and thus, a certificate of appealability is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
JUDGMENT
Pursuant to the Court's Order: Granting Motion To Dismiss; Summarily Dismissing Petition Without Prejudice; and Denying Certificate of Appealability, IT IS ADJUDGED that the above-captioned case is dismissed without prejudice.