King v. Giurbino

Full title: Ural KING, Petitioner-Appellant, v. G.J. GIURBINO, Warden…

Court: United States Court of Appeals, Ninth Circuit

Date published: Mar 21, 2007

225 F. App'x 623 (9th Cir. 2007)

Opinion

No. 05-55984.

Submitted February 9, 2007.^_

_ This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed March 21, 2007.

Ural King, Soledad, CA, pro se.

Steven S. Lubliner, Esq., Law Offices of Steven S. Lubliner, Petaluma, CA, for Petitioner-Appellant.

Marvin E. Mizell, Office of the California Attorney General, San Diego, CA, for Respondent-Appellee.

Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. CV-O4-01107-R(SGL).

Before: KOZINSKI and TROTT, Circuit Judges, and MOLLOY,^__ District Judge.

__ The Honorable Donald W. Molloy, Chief United States District Judge for the District of Montana, sitting by designation.

MEMORANDUM ^___

___ This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1. King never sought leave to amend his state habeas petition, so the California Supreme Court did not consider his amendments. See People v. Green 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468, 493 n. 28 (1980) ("It is settled that in a habeas corpus proceeding `the court considers only those grounds . . . alleged in the petition for issuance of the writ' or in any supplemental petition filed with permission of the court." (citations omitted)), overruled on other grounds by People v. Martinez, 20 Cal.4th 225, 83 Cal.Rptr.2d 533, 973 P.2d 512 (1999); see also In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729, 749 n. 16 (1993) (same). Because King did not adequately present these claims in state court, the district court properly found them to be unexhausted.

2. The district court erred in dismissing the petition without first giving King "the choice of exhausting his unexhausted claims by returning to state court, or abandoning those claims and pursuing the remaining exhausted claims in federal court." Jefferson v. Budge, 419 F.3d 1013, 1015 (9th Cir. 2005). That the state mentioned these options in its motion to dismiss does not relieve the district court of its burden under Jefferson to provide these options.

REVERSED in part and REMANDED.

MOLLOY District Judge, concurring.

I concur in the result the majority reaches and agree that the district court erred in failing to follow the procedures set forth in Jefferson v. Budge, 419 F.3d 1013 (9th Cir. 2005). I disagree with the majority to the extent that it holds the district court properly found three of King's claims to be unexhausted. Thus, on remand I would require the district court to review claims five, six and seven on the merits.