Opinion
No. C 02-4789 TEH (pr).
June 19, 2003.
ORDER OF DISMISSAL
Sukwinder Sahota, a prisoner at the California State Prison — Solano, filed this action for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent has filed a motion to dismiss the petition for failure to exhaust state remedies, which petitioner has opposed.
The exhaustion rule requires that prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement first 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). The exhaustion-of-state-remedies doctrine reflects a policy of federal-state comity to give the state "`the initial "opportunity to pass upon and correct" alleged violations of its prisoners' federal rights.'" Picard v. Connor, 404 U.S. 270, 275 (1971) (citations omitted). A federal district court must dismiss a habeas petition containing claims as to which state remedies have not been exhausted. See Rose v. Lundy, 455 U.S. at 522.
The court has compared Sahota's federal petition with Sahota's petition for review and petition for writ of habeas corpus filed in the California Supreme Court, and concludes that none of the claims in the federal petition were included in the petitions to the California Supreme Court. State judicial remedies have not been exhausted as to any of the claims in Sahota's federal petition.
Sahota asserts three claims in his federal petition. His first claim is that the trial court denied him due process when it refused to allow him to withdraw his no-contest plea when he learned of new exculpatory evidence after the plea but before the sentencing date. His second claim is that his plea was not entered voluntarily and knowingly. Sahota urges that these claims were exhausted in his petition for review to the California Supreme Court. This court disagrees. The claim presented to the California Supreme Court in Sahota's petition for review was whether it was an "abuse of discretion to deny a motion to withdraw a plea of no contest where new exculpatory evidence is discovered after the entry of the plea." Petition For Writ Of Habeas Corpus, Exh. F, p. 2. That is not the same claim as either Claim 1 or Claim 2 in Sahota's federal petition. The federal cases cited in the petition for review pertain to a Confrontation Clause analysis and did not raise the due process claims Sahota now raises in his federal habeas petition. The Confrontation Clause issue was merely a subsidiary portion of the analysis: i.e., Sahota was attempting to show that he should have been allowed to withdraw his no-contest plea, and to do so he needed to show among other things that the evidence would have been admissible under the Confrontation Clause. There is no stand-alone Confrontation Clause issue in the federal habeas petition because Sahota pled no-contest and did not have a trial. Claims 1 and 2 are not exhausted.
The third claim in Sahota's federal habeas petition is that he received ineffective assistance of counsel in that counsel did not investigate a defense before allowing him to enter his no-contest plea. Sahota argues that this claim was exhausted by his inclusion of the ineffective assistance claim in his petition for writ of habeas corpus to the California Supreme Court. The petition for writ of habeas corpus to the California Supreme Court was denied with citations to In re Swain, 34 Cal.2d 300, 304 (Cal. 1949), and In re Duvall, 9 Cal.4th 464, 474 (Cal. 1995). See Resp. Motion To Dismiss, Exh. 3.
Under California law, a denial of a habeas petition with a citation to In re Swain indicates that a petitioner has failed to state his claim with sufficient particularity for the state court to examine the merits of the claim and has failed to explain the reasons for any delay in filing his petition. See In re Swain, 34 Cal.2d at 304. The citation to Duvall indicates that a petitioner has failed to state his claim with sufficient particularity for the state court to examine the merits of the claim. The Ninth Circuit treats a citation to In re Swain as standing for a denial on procedural grounds which can be cured in a renewed state petition. See Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). State judicial remedies therefore are not exhausted. See id.
Sahota's habeas petition to the California Supreme Court did not "allege with particularity the facts upon which he would have a final judgment overturned." In Re Swain, 34 Cal.2d at 304. Although Sahota did state that he was deprived of effective assistance of counsel because his attorney failed to investigate Sahota's statement that another person identified by Sahota had committed the crimes, the allegations lacked factual particularity. See Resp. Motion To Dismiss, Exh. 2. Sahota had not told the California Supreme Court who the guilty person was, what that person had said, how that person's statement exonerated Sahota, whether that person would have been willing to make the statement in time for effective use by the defense, why it would have caused Sahota to evaluate his situation differently, and why the person's statement was credible. Although a petitioner need not plead every one of these facts, Sahota's petition to the California Supreme Court could easily have been viewed by it as just another prisoner claiming someone else committed the crime and so lacking in detail that a response wasn't warranted. Sahota didn't alert that court to the fact that there was a videotaped confession from Manjinder or how that would have affected his defense choices. Sahota did not fairly present his ineffectiveness claim to the state court and thus has not exhausted his state court remedies as to that claim. Claim 3 is not exhausted.
Sahota's petition must be dismissed because it has no claims as to which state court remedies have been exhausted. The action cannot be stayed while he exhausts his state court remedy. Sahota is urged to act swiftly to exhaust his state court remedies (by, e.g., presenting the claims in a new petition for writ of habeas corpus to the California Supreme Court) and immediately file a new federal habeas petition after he receives a decision from that court. There is a critical one-year statute of limitations on the filing of federal habeas petitions, see 28 U.S.C. § 2244(d), that may bar some or all of Sahota's claims when he returns to federal court, especially if he does not do so swiftly.
Respondent's motion to dismiss is GRANTED. (Docket #3.) The action is dismissed because petitioner did not exhaust state court remedies before filing his federal petition for writ of habeas corpus. The clerk shall close the file. Because this action is now closed, when petitioner files his new federal habeas petition, he should not use the case number for this action and instead should file the petition as a new action, i.e., he should send the petition to the court without a case number and the court will assign it a new case number when the petition is filed.
IT IS SO ORDERED.
JUDGMENT
This action is dismissed because petitioner did not exhaust his state court remedies before filing his federal petition for writ of habeas corpus.
IT IS SO ORDERED AND ADJUDGED.