Opinion
No. C 01-1890 SI
October 8, 2001
ORDER DISMISSING PETITION WITHOUT PREJUDICE FOR FAILURE TO EXHAUST STATE REMEDIES
Respondent has filed a motion to dismiss Calvin Limbocker's petition for writ of habeas corpus, based on petitioner's failure to exhaust state remedies prior to filing the petition. The Court finds this motion appropriate for determination without oral argument pursuant to Local Rule 7-1(b), and the hearing set for October 12, 2001 is VACATED. Having considered the parties' submissions, and for the reasons set forth below, respondent's motion is GRANTED, and the petition is DISMISSED WITHOUT PREJUDICE.
BACKGROUND
Petitioner was convicted of a misdemeanor in Santa Clara Superior Court and sentenced to a four month jail term and three years of probation. See Petition for Habeas Corpus, § 1. On February 23, 2000, petitioner appealed to the Appellate Division of Santa Clara Superior Court. See id. at § 3. When the Appellate Division upheld his conviction, petitioner moved to certify his appeal for transfer to the Court of Appeals for the Sixth District. See Petitioner's Opposition to Motion to Dismiss, Exhibit A. Petitioner asserts, and respondent concedes, that petitioner did exhaust his direct appeal remedies without reaching the California Supreme Court. See id. at 2:2-11; Respondent's Reply to Motion to Dismiss. 1:25-28. Although no clear statement of procedural history is found in the parties' briefs, it appears from the fact of the petition for writ of habeas corpus now before this court that petitioner's motion to transfer to the Court of Appeals was denied.
Mr. Limbocker then filed a petition for writ of habeas corpus to this Court on May 12, 2000. Respondent moved to dismiss, claiming petitioner had not exhausted available state remedies. The motion to dismiss is presently before this Court.
LEGAL STANDARDS
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, 119 S.Ct. 1728, 1730 (1999). The exhaustion requirement does not demand repetitious application to the state courts, however; a petitioner need present his claims only once and need exhaust only one avenue of relief. See Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987), cert. denied, 489 U.S. 1059 (1989). This is true even where alternative avenues of review are still available in state court. See id.
The exhaustion requirement is not jurisdictional, but rather a matter of comity. See Granberry v. Greer, 481 U.S. 129, 133-34 (1987). However, a district court may not grant the writ unless state court remedies are exhausted or there are exceptional circumstances. See 28 U.S.C. § 2254 (b)(1); Edelbacher v. Calderon, 160 F.3d 582, 585 (9th Cir. 1998). The appropriate time to assess whether a prisoner has exhausted his state remedies is when the federal petition is filed. See id.; Brown v. Maass, 11 F.3d 914, 915 (9th Cir. 1993). If the petitioner exhausts after filing, he can bring that up in a subsequent petition. See Galtin v. Madding, 189 F.3d 882, 882 (9th Cir. 1999).
A person challenging a misdemeanor conviction must present his claims to the California Supreme Court either by habeas or direct appeal in order to exhaust. See Larche v. Simons, 53 F.3d 1068, 1071 (9th Cir. 1995). If a misdemeanant's direct appeal is terminated before he reaches the California Supreme Court, he then must present his claims to that court in a habeas proceeding. Giving the California Supreme Court at least one opportunity to review petitioner's claim before he is heard in federal court furthers the interest of comity. See id.
DISCUSSION
Petitioner asserts, and respondent concedes, that plaintiff did exhaust his direct appeal remedies without reaching the California Supreme Court. See id. at 2:2-11; Respondent's Reply to Motion to Dismiss, 1:25-2:13. The Court therefore does not discuss exhaustion of direct appeals.
Turning to whether petitioner must appeal to the California Supreme Court by means of a writ of habeas corpus, it is well established that he does. The controlling case is Larche v. Simons, 53 F.3d 1068 (9th Cir. 1995). Larche contended that he was not required to present his claims to the California Supreme Court to exhaust his state remedies because he was a misdemeanant. See id. at 1071. The Court held that a misdemeanant must give a state's highest court the opportunity to review constitutional claims. See id. This is so, even when the court's review is discretionary. See id. Larche, therefore, had failed to exhaust his state remedies. See id. at 1072. Petitioner, like Larche, was convicted of a misdemeanor. Like Larche, his direct appeal was exhausted before reaching the state's highest court. He therefore must present his constitutional claims to the California Supreme Court through the state habeas procedure.
Turning to petitioner's arguments why this Court should decline to follow controlling legal precedent in Larche, the Court finds they are without weight. The Supreme Court's decisions in Talley v. California, 362 U.S. 60 (1960) and Schneider v. New Jersey, 308 U.S. 147 (1939), do not contradict the doctrine of Larche. Those cases involve the Supreme Court's grant of certiorari. Neither discusses the exhaustion question presently before this Court; each devotes a single sentence to the proposition that the highest courts available to petitioners were, respectively, a county superior court and the appellate department of a county superior court. See Talley, 362 U.S. at 61-62; Schneider, 308 U.S. at 148. In this case, it is undisputed that the highest court available to petitioner on direct appeal was the California Court of Appeals, to which petitioner duly moved for transfer. It is true that a person petitioning for writ of habeas corpus need not necessarily pursue the writ in state court if he has presented his claims to the state supreme on direct appeal. Larche, however, commands that the California Supreme Court be presented once with a petitioner's constitutional claims if the exhaustion requirements is to be met. The Ninth Circuit cases to which petitioner refers in his opposition are consistent with this rule. Petitioner has not yet presented the California Supreme Court with his claims.
Petitioner argues that Larche has been superseded by the United States Supreme Court's decision in O'Sullivan v. Boerckel. Petitioner is mistaken. In O'Sullivan, the Supreme Court held only that the discretionary nature of review in a state's highest court does not render that review unavailable for the purposes of exhaustion. See O'Sullivan v. Boerckel, 526 U.S. 838, 848. In fact, O'Sullivan stands for the proposition that the state's highest court must be given an opportunity to rule on the claims even if review is discretionary. See id. at 839-840.
Petitioner has not presented this Court with any argument for deviating from the clear command of the Ninth Circuit in Larche. Petitioner has failed to exhaust his state remedies as he must before bringing his petition for writ of habeas corpus before this Court. Accordingly, the petition must be dismissed.
CONCLUSION
For the foregoing reasons, respondent's motion to dismiss the petition for writ of habeas corpus is hereby GRANTED, and the petition is DISMISSED WITHOUT PREJUDICE. Petitioner may file a new petition after exhausting his state remedies.
Petitioner is cautioned to comply with 28 U.S.C. § 2244, which imposes a one year statute of limitations on petitions filed by prisoners challenging non-capital state convictions or sentences.