Opinion
Case No. LA CV 17-6274 JLS (JCG)
01-26-2018
MAJESTIC ZULU, Petitioner, v. WILLIAM MUNIZ, Warden, Respondent.
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY
I.
INTRODUCTION
On August 15, 2017, petitioner Majestic Zulu ("Petitioner"), a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") in federal court. [Dkt. No. 1.] However, Petitioner has failed to exhaust his state court remedies. Accordingly, and for the reasons discussed below, the Court dismisses the Petition without prejudice. See 28 U.S.C. § 2254(b)(1)(A). //
II.
STATE COURT PROCEEDINGS
By way of background, in 2016, a jury convicted Petitioner of rape, sodomy, sexual penetration, kidnapping for the purpose of robbery, and first degree robbery. (Pet. at 1); People v. Zulu, 2017 WL 2131376, at *1 (Cal. Ct. App. May 17, 2017). Petitioner appealed the conviction to the California Court of Appeal. (Pet. at 5.) The Court of Appeal affirmed Petitioner's conviction and held that any error in imposing consecutive sentences was harmless, but stayed the six-year sentence for robbery. Zulu, 2017 WL 2131376, at *7. On July 26, 2017, the California Supreme Court denied a petition for review. See www.courts.ca.gov, Case Information, Supreme Court, Case No. S242643; Porter v. Ollison, 620 F.3d 952, 954-55 n. 1 (9th Cir. 2010) (taking judicial notice of state court docket).
III.
DISCUSSION
As a rule, a state prisoner must exhaust state court remedies before filing a federal habeas petition. 28 U.S.C. § 2254(b); Baldwin v. Reese, 541 U.S. 27, 29 (2004). To satisfy the exhaustion requirement, a petitioner must "fairly present" his federal claims to the state courts "to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (internal quotation marks omitted). Specifically, "[a] state prisoner seeking relief with respect to a California conviction is required to fairly present his federal claims to the California Supreme Court." Royal v. Davey, 2014 WL 3791164, at *2 (C.D. Cal. July 31, 2014). A claim is deemed to have been "fairly presented" when the petitioner has "described both the operative facts and the federal legal theory on which the claim is based." Pourahmad v. Doyle, 2010 WL 770039, at *1 (C.D. Cal. Feb. 20, 2010) (emphasis added).
Here, Petitioner appears to advance one ground of relief: ineffective assistance of counsel. (See Pet. at 3.) However, Petitioner did not present this claim on direct appeal. (See Pet. at 5); Zulu, 2017 WL 2131376, at *1. Nor has Petitioner filed any state-court habeas petition regarding his conviction or sentence. (Pet. at 6.) Consequently, the Court finds that the Petition is completely unexhausted, and thus subject to dismissal without prejudice. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("Once a district court determines that a habeas petition contains only unexhausted claims . . . it may simply dismiss the habeas petition for failure to exhaust.").
Petitioner is advised that the Court's dismissal of his Petition is without prejudice. If Petitioner wishes to pursue federal habeas relief, he may file a new federal habeas petition containing only claims that have been "fairly presented" to the California Supreme Court, as discussed above. See Pourahmad, 2010 WL 770039, at *1. To the extent Petitioner wishes to pursue federal habeas claims that are currently unexhausted, he may do so after he has "fairly presented" such claims in a state habeas petition to the California Supreme Court. See Royal, 2014 WL 3791164, at *2.
Petitioner is further advised that there is a one-year statute of limitations on federal habeas claims by a petitioner in state custody, which ordinarily begins to run at the end of the period during which that petitioner may seek direct review. 28 U.S.C. § 2244(d)(1); see also Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (for purposes of determining when judgment is final under § 2244(d)(1), period of direct review includes "the ninety-day period within which [the petitioner] could have filed a petition for a writ of certiorari from the United States Supreme Court"). The limitations period is tolled while a properly filed application for state post-conviction relief, or other collateral review (such as a state habeas petition), is pending. 28 U.S.C. § 2244(d). However, the limitations period is not tolled while a petition is pending in federal court. Duncan v.Walker, 533 U.S. 167, 181-82 (2001).
Finally, should Petitioner elect to file a federal habeas petition in the future once all his federal claims are exhausted, he should name a proper respondent. "[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254 must name 'the state officer having custody of him or her as the respondent to the petition.'" Smith v. Idaho, 392 F.3d 350, 354 (9th Cir. 2004) (citation omitted). The proper respondent is usually the warden of the facility where the petitioner is incarcerated. Id. Failure to name the proper respondent deprives the federal court of personal jurisdiction over the custodian. Id. at 354-55.
Petitioner left the first page of the petition for writ of habeas corpus form completely blank, which asked for his name, prison identification number, address or place of confinement, the name of the warden having custody of Petitioner, and his place/county of conviction. (See Pet. at 1.) --------
IV.
CERTIFICATE OF APPEALABILITY
Additionally, for the reasons stated above, the Court finds that Petitioner has not shown that reasonable jurists would find it debatable whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). The Court thus declines to issue a certificate of appealability. // // // //
V.
ORDER
For the foregoing reasons, IT IS ORDERED THAT the Petition be SUMMARILY DISMISSED for failure to exhaust, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
IT IS FURTHER ORDERED THAT a Certificate of Appealability be DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: January 26, 2018
/s/_________
HON. JOSEPHINE L. STATON
UNITED STATES DISTRICT JUDGE Presented by: /s/_________
Hon. Jay C. Gandhi
United States Magistrate Judge