Opinion
Case No. 17-04668 BLF (PR)
08-06-2018
EDUARDO P. NAVAL, Petitioner, v. CHARLES W. CALLAHAN, Warden, Respondent.
ORDER GRANTING MOTION TO DISMISS; DENYING CERTIFICATE OF APPEALABILITY
(Docket No. 11)
Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state conviction. Respondent filed a motion to dismiss the petition for failure to exhaust state remedies. (Docket No. 11, hereafter "Mot.") Petitioner did not file an opposition although given an opportunity to do so. For the reasons set forth below, Respondent's motion to dismiss is GRANTED.
This matter was reassigned to this Court after Respondent declined magistrate jurisdiction. (See Docket No. 8.) --------
I. BACKGROUND
Petitioner was convicted in 2007 by a jury in San Francisco County Superior Court of continuous sexual abuse of a child, threatening great bodily injury, dissuading a witness, and assault with a deadly weapon. (Mot. at 1, Ex. A at 1.) Petitioner was sentenced to 18 years in state prison.
On January 10, 2010, the California Court of Appeal reversed Petitioner's conviction for assault with a deadly weapon, affirmed his conviction on the three remaining counts, and remanded the matter to the superior court for resentencing. (Id.) On September 1, 2010, the superior court resentenced Petitioner to 15 years in state prison. (Id. at 2.)
Petitioner filed an appeal and a petition for writ of habeas corpus in the California Court of Appeal. On March 29, 2012, the state appellate court affirmed the conviction and dismissed the habeas petition in an unpublished decision. (Mot., Ex. B.) Petitioner did not seek review or file a habeas petition in the California Supreme Court. (Id.; Pet. at 3.)
Petitioner filed the instant federal habeas action on August 14, 2017.
II. DISCUSSION
A. Exhaustion
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). If available state remedies have not been exhausted as to all claims, the district court must dismiss the petition. Duckworth v. Serrano, 454 U.S. 1, 3-5 (1981). Before he may challenge either the fact or length of his confinement in a habeas petition in this Court, petitioner must present to the California Supreme Court any claims he wishes to raise in this court. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every claim raised in federal habeas petition must be exhausted). If available state remedies have not been exhausted as to all claims, the district court must dismiss the petition. Id. at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988).
Respondent argues that Petitioner did not exhaust his state judicial remedies for any of the three claims he raises in this action because he failed to file any pleading in the California Supreme Court seeking review of the state appellate court's decision. (Mot. at 2.) As such, Respondent argues that the instant petition must be dismissed for failure to exhaust state judicial remedies. (Id.)
Petitioner has filed no opposition to refute Respondent's motion. The petition indicates that he did not appeal the conviction to the California Supreme Court. (Pet. at 3.) The exhibits filed in support of Respondent's motion indicate that no review of Petitioner's conviction was sought in the state high court. See supra at 2. Accordingly, it appears that Petitioner failed to present any of the claims in the instant federal petition to the California Supreme Court such that the petition must be dismissed for failure to exhaust state judicial remedies. See Rose, 455 U.S. at 509-10. Respondent's motion to dismiss must be granted.
III. CONCLUSION
For the foregoing reasons, Respondent's motion to dismiss the petition, (Docket No. 11), is GRANTED. The instant petition for a writ of habeas corpus is DISMISSED for failure to exhaust state judicial remedies. The dismissal is without prejudice to Petitioner returning to this Court after exhausting available state remedies. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).
No certificate of appealability is warranted in this case. See Rule 11(a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring district court to rule on certificate of appealability in same order that denies petition). Petitioner has not shown "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). /// ///
This order terminates Docket No. 11.
IT IS SO ORDERED. Dated: August 6, 2018
/s/_________
BETH LABSON FREEMAN
United States District Judge Order Granting Motion to Dismiss; Denying COA
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