Manuel Fernandez et al v. Charles A Chung
Filing
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ORDER SUMMARILY DISMISSING CASE WITHOUT PREJUDICE by Judge Dean D. Pregerson, re Petition for Writ of Habeas Corpus (2254) 1 : The Petition is dismissed without prejudice. (See document for details). Case Terminated. Made JS-6. (ib)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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MANUEL FERNANDEZ and
CAREY LEE MOISAN,
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Petitioners,
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vs.
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CHARLES A. CHUNG, Warden,
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Respondent.
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CASE NO. CV 11-02945 DDP (RZ)
ORDER SUMMARILY DISMISSING
ACTION WITHOUT PREJUDICE
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The Court will dismiss the action summarily because the two petitioners
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expressly indicate that their sole claim has not already been exhausted in the state courts,
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as is required for habeas relief.
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Generally, Rule 4 of the Rules Governing Section 2254 Cases in the United
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States District Courts provides that “[i]f it plainly appears from the face of the petition and
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any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the
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judge shall make an order for its summary dismissal and cause the petitioner to be
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notified.” More specifically, the Ninth Circuit indicates that a district court presented with
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an entirely unexhausted petition may, or even must, dismiss the action. Raspberry v.
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Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“Once a district court determines that a
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habeas petition contains only unexhausted claims, it need not inquire further as to the
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petitioner’s intentions. Instead, it may simply dismiss the habeas petition for failure to
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exhaust.”), citing Jimenez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (district court is
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“obliged to dismiss [an entirely unexhausted petition] immediately” once respondent
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moves for such dismissal).
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Here, as a preliminary matter, two petitioners improperly are joined in one
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habeas action. Although the petitioners were joined as co-defendants at trial and as co-
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appellants on direct appeal, habeas corpus petitions generally are prosecuted by one and
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only one petitioner.
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What requires dismissal here, however, is a different shortcoming. Petitioners
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raise only one claim, namely that the trial court’s sentence violated the terms of their plea
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bargain. They expressly state that they have not yet presented that claim in the California
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Supreme Court either on direct review or on state habeas review. See Pet. ¶¶ 4, 6.
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Moreover, the Court takes judicial notice, based on a search of public records at the website
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http://appellatecases.courtinfo.ca.gov/, that no person with the same name as either
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petitioner has litigated any action in the California Supreme Court since 1996. (Petitioners
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were convicted based on negotiated pleas in September 2008. See Pet. ¶ 2(d).)
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Accordingly, the Petition is DISMISSED WITHOUT PREJUDICE.
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DATED: August 31, 2011
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DEAN D. PREGERSON
UNITED STATES DISTRICT JUDGE
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