Opinion
ED CV 24-1680-JVS(E)
11-13-2024
THURMAN GAINES, Petitioner, v. TRAVIS PENNINGTON, Respondent.
REPORT AND RECOMMENDATION OF OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES 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.
PROCEEDINGS
Petitioner, a state prisoner, filed a “Petition for Writ of Habeas Corpus” on July 31, 2024. The Petition appears to challenge a denial of parole. Respondent filed a “Motion to Dismiss” on October 7, 2024. The Motion asserts, inter alia, that the action should be dismissed for failure to exhaust available state court remedies.
Petitioner did not file timely opposition to the Motion. However, Petitioner did file a document entitled “Petition for Writ of Habeas Corpus” (“the Amended Petition”) on October 22, 2024. The Amended Petition is substantively identical to the original Petition, except that the Amended Petition contains a very conclusory request “to stay” and a request for the appointment of counsel.
DISCUSSION
A federal court will not grant a state prisoner's petition for writ of habeas corpus unless it appears that the prisoner 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 Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982); Henrickson v. Peery, 2016 WL 4540847, at *1 (E.D. Cal. Aug. 31, 2016).
State remedies have not been exhausted unless and until the petitioner's federal claims have been fairly presented to the state's highest court. See Castille v. Peoples, 489 U.S. 346, 350-51 (1989); James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied, 513 U.S. 935 (1994). A claim has not been fairly presented unless the petitioner has described in the state court proceedings both the operative facts and the federal legal theory on which his or her claim is based. Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Anderson v. Harless, 459 U.S. 4, 6 (1982); Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999). Once the petitioner has fairly “presented the substance of his [or her] claim” to the highest court of the state, the exhaustion requirement has been satisfied. Vasquez v. Hillery, 474 U.S. 254, 257-58 (1986); see Davis v. Silva, 511 F.3d 1005, 1011 (9th Cir. 2008).
The Petition and the Amended Petition both indicate that Petitioner has not yet presented his claims to the California Supreme Court (Petition, pp. 5-6; Amended Petition, pp. 5-6). Petitioner still may be able to present his claims through a habeas petition filed with the California Supreme Court. See, e.g., In re Bell, 36 Cal.App.3d 643, 111 Cal.Rptr. 581 (1974) (parole issues may be raised by state habeas petition). Unless and until Petitioner does so, this Court should not reach the merits of Petitioner's claims. See Rose v. Lundy, 455 U.S. 509, 522 (1982).
Petitioner's unsupported, conclusory request for a stay is denied. See Rhines v. Weber, 544 U.S. 269 (2005). Petitioner's request for the appointment of counsel is also denied. See Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th Cir.), cert. denied, 479 U.S. 867 (1986).
RECOMMENDATION
For all of the foregoing reasons,1 IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered dismissing this action 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 notice of 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.