Opinion
No. C 03-4214 WHA (PR)
October 6, 2003
JUDGMENT
Pursuant to the court's order entered today, a judgment of dismissal without prejudice is hereby entered. Plaintiff shall take nothing by way of his complaint.
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS; DISMISSAL WITHOUT PREJUDICE FOR FAILURE TO EXHAUST
Petitioner, a California state inmate, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. An application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court may not be granted unless the prisoner has first exhausted state judicial remedies, either by way of a direct appeal or in collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every issue he or she seeks to raise in federal court. See 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Petitioner has the burden of pleading exhaustion in his habeas petition. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
In California, the supreme court, intermediate courts of appeal, and superior courts all have original habeas corpus jurisdiction.See Nino v. Galaza, 183 F.3d 1003, 1006 n. 2 (9th Cir. 1999). Although a superior court order denying habeas corpus relief is non-appealable, a state prisoner may file a new habeas corpus petition in the court of appeals. See id. If the court of appeals denies relief, the petitioner may seek review in the California Supreme Court by way of a petition for review, or may instead file an original habeas petition in the supreme court. See id. at n. 3.
Petitioner was evidently convicted of misdemeanors. In California, a criminal defendant seeks review of a misdemeanor conviction by filing a notice of appeal in, the municipal court seeking review by the appellate department of the superior court. After the Appellate Department of the Superior Court has denied relief a misdemeanant requests transfer to the Court of Appeal. If the request is denied then the petitioner has completed his direct appeal. If the request is not denied, his appeal is transferred to the California Court of Appeal and the appeal continues.See Cal. Rules of Court 62, 63, 182.
A misdemeanant must present his claims to the California Supreme Court in order to exhaust his state remedies. Thus, if his direct appeal is concluded before he reaches the California Supreme Court, he must present his claims by habeas proceedings to that court in order to exhaust his claims for federal habeas purposes. See Larche v. Simons, 53 F.3d 1068, 1072 (9th Cir. 1995). In the interests of comity, the California Supreme Court must be given at least one opportunity to review petitioner's claim before he is heard in federal court. See id. at 1071.
Petitioner states that he did not appeal and that he has filed no other challenges to the convictions he seeks to overturn here. He thus has not exhausted his state court remedies, nor has he presented any exceptional circumstances to excuse his doing so. See Granberry, 481 U.S. at 134. The petition is therefore DISMISSED without prejudice to refiling after available state judicial remedies are exhausted.
Petitioner is cautioned that under the Antiterrorism and Effective Death Penalty Act of 1996, petitions filed by prisoners challenging non-capital stare convictions or sentences must be filed within one year of the latest of the date on which: (1) the judgment became final after the conclusion of direct review or expiration of the time for seeking direct review; (2) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the United States Supreme Court, if the right was newly recognized and made retroactive to cases on collateral review; or (4) the factual predicate of the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Time during which a properly filed application for collateral review (such as a state habeas petition) is pending is excluded from the one-year time limit.Id. § 2244(d)(2).
Leave to proceed in forma pauperis (doc 2) is GRANTED. Plaintiff may disregard the clerk's notice sent to him on September 16, 2003, regarding his in forma pauperis application.
The clerk shall close the file.
IT IS SO ORDERED.