Opinion
CV 24-4059-WLH(E)
08-12-2024
Justin TerVeer, Petitioner, v. Cuevas & The People, et al., Respondents.
REPORT AND RECOMMENDATION OF OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Wesley L. Hsu, United States District Judge, pursuant to 28 U,S,C, section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner, a state prisoner, filed a "Petition for Writ of Habeas Corpus" in the United States District Court for the Southern District of California on May 10, 2024. The United States District Court for the Central District of California received a transfer of the Petition on May 17, 2024. Because it plainly appears from the face of the Petition that Petitioner has failed to exhaust available state court remedies, the Petition should be denied and dismissed without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
DISCUSSION
A federal court will not grant a state prisoner's petition for writ of habeas corpus unless it appears that the prisoner has exhausted available state remedies. 28 U,S.C, § 2254(b) - (c); Baldwin v. Reese, 541 U.S, 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S, 838, 842 (1999). "Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." O'Sullivan v. Boerckel, 526 U.S, at 844. The exhaustion requirement seeks to avoid "the unseemliness of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." Id. at 844-45 (citations, internal brackets and quotations omitted). Exhaustion is evaluated on a "claim-by-claim" basis. Insyxiengmay v. Morgan, 4Q3 F,3d 657, 667 (9th Cir. 2005). Petitioner bears the burden to show compliance with the exhaustion requirement. See, e.g., Cartwright v. Cupp, 650 F,2d 1103, 11Q4 (9th Cir. 1981), cert, denied, 455 U.S, 1023 (1982); see also Brown v. Cuyler, 669 F,2d 155, 158 (3d Cir. 1982); Henrickson v. Peery, 2Q16 WL 4540847, at *1 (E.D. Cal. Aug. 31, 2016) .
State remedies have not been exhausted unless and until the petitioner's federal claims have been fairly presented to the state's highest court. See Castille v. Peoples, 489 U.S, 346, 350-51 (1989); James v. Borg, 24 F,3d 20, 24 (9th Cir.), cert, denied, 513 U.S, 935 (1994). A claim has not been fairly presented unless the petitioner has described in the state court proceedings both the operative facts and the federal legal theory on which his or her claim is based. Duncan v. Henry, 513 U.S, 364, 365-66 (1995); Anderson v. Harless, 459 U.S. 4, 6 (1982); Weaver v. Thompson, 197 F,3d 359, 364 (9th Cir. 1999). Once the prisoner has fairly "presented the substance of his [or her] claim" to the highest court of the state, the exhaustion requirement has been satisfied. Vasquez v. Hillery, 474 U.S, 254, 257-58 (1986); see Davis v. Silva, 511 F.3d 1005, 1Q11 (9th Cir. 2008).
Petitioner concedes that he has not yet presented any of this claims to the California Supreme Court (Petition, pp. 3-5). Petitioner still may be able to present his unexhausted claims to the California Supreme Court. See, e.g., In re Harris, 5 Cal, 4th 813, 825, 21 Cal.Rptr.2d 373, 855 P,2d 391 (1993) ("[H]abeas Corpus has become a proper remedy in this state to collaterally attack a judgment of conviction which has been obtained in violation of fundamental constitutional rights.") (citations and quotations omitted); People v. Bautista, 115 Cal, App, 4th 229, 237, 8 Cal, Rptr, 3d 862 (2004) (claim that fundamental constitutional right had been violated may be raised by state habeas petition) A Accordingly, the Petition should be denied and dismissed without prejudice.
The Court expresses no opinion concerning whether consideration of a state habeas petition might be foreclosed by the principles discussed in In re Clark, 5 Cal, 4th 75Q, 763-87, 21 Cal, Rptr, 2d 5Q9, 517-34, 855 P,2d 729 (1993). The California Supreme Court should evaluate this matter in the first instance. Moreover, even if there exists an applicable state procedural bar, the California Supreme Court nevertheless might choose to reach the merits of Petitioner's claims. See, e.g., Park v. California, 2Q2 F,3d 1146 (9th Cir.), cert, denied, 531 U.S, 918 (2000).
RECOMMENDATION
For the reasons discussed herein, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition without prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.