David Michael Steinberg v. M McDonald

Filing 5

ORDER RE SUMMARY DISMISSAL OF ACTION WITHOUT PREJUDICE by Judge Andrew J. Guilford, Case Terminated. Made JS-6. (jm)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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DAVID M. STEINBERG,
vs.

Petitioner,

M. McDONALD, WARDEN,
Respondent.

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No. CV 11-3511AG (FFM)
ORDER RE SUMMARY
DISMISSAL OF ACTION WITHOUT
PREJUDICE

On or about March 22, 2011, petitioner constructively filed a Petition for

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Writ of Habeas Corpus by a Person in State Custody (“Petition”) herein. The

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Petition challenges a 2007 conviction and 2008 sentence.

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Petitioner alleges that he has a petition for writ of habeas corpus currently

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pending before the Superior Court of the State of California for the County of Los

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Angeles. (Petition at 4 and 7-8.) Petitioner also alleges that he has not exhausted

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Grounds 9 through 11. (Petition at 6-8.)

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As a matter of comity, a federal court will not entertain a habeas corpus

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petition unless the petitioner has exhausted the available state judicial remedies on

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every ground presented in the petition. Rose v. Lundy, 455 U.S. 509, 518-22, 102

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S. Ct. 1198, 71 L. Ed. 2d 379 (1982). The habeas statute now explicitly provides

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that a habeas petition brought by a person in state custody “shall not be

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granted unless it appears that -- (A) the applicant has exhausted the remedies

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available in the courts of the State; or (B)(I) there is an absence of available State

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corrective process; or (ii) circumstances exist that render such process ineffective

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to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). Moreover, if the

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exhaustion requirement is to be waived, it must be waived expressly by the State,

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through counsel. See 28 U.S.C. § 2254(b)(3).

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Exhaustion requires that the prisoner’s contentions be fairly presented to the

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state courts, and be disposed of on the merits by the highest court of the state.

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Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979). A claim has not been fairly

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presented unless the prisoner has described in the state court proceedings both the

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operative facts and the federal legal theory on which his claim is based. See

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Duncan v. Henry, 513 U.S. 364, 365-66, 115 S. Ct. 887, 130 L. Ed. 2d 865

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(1995); Picard v. Connor, 404 U.S. 270, 275-78, 92 S. Ct. 509, 30 L. Ed. 2d 438

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(1971); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). A federal court may

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raise the failure to exhaust issues sua sponte and may summarily dismiss on that

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ground. See Stone v. San Francisco, 968 F.2d 850, 856 (9th Cir. 1992);

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Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (per curiam); see also

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Granberry v. Greer, 481 U.S. 129, 134-35, 107 S. Ct. 1671, 95 L. Ed. 2d 119

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(1987).

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Because petitioner alleges that he currently has a petition pending in the

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California Superior Court, the exhaustion issue here is governed by the Ninth

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Circuit’s holding and reasoning in Sherwood v. Tompkins, 716 F.2d 632 (9th Cir.

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1983). There, the petitioner was seeking habeas relief on the ground that he had

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been denied his right to appointed counsel and free transcripts. Although the

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petitioner’s state appeal from his conviction still was pending, the petitioner

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arguably had exhausted his state remedies with respect to the particular

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claim being raised in his federal habeas petition. The Ninth Circuit held that the

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federal habeas petition nevertheless had to be dismissed for failure to exhaust state

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remedies:

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[E]ven were Sherwood to have exhausted all his state remedies with

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respect to the denial of his appointed counsel and free transcript

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request, that would not be enough to satisfy the requirements of 28

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U.S.C. §§ 2254(b) and (c). When, as in the present case, an appeal of a

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state criminal conviction is pending, a would-be habeas corpus

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petitioner must await the outcome of his appeal before his state

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remedies are exhausted, even where the issue to be challenged in the

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writ of habeas corpus has been finally settled in the state courts.

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As we explained in Davidson v. Klinger, 411 F.2d 746, 747 (9th

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Cir. 1969), even if the federal constitutional question raised by the

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habeas corpus petitioner cannot be resolved in a pending state appeal,

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that appeal may result in the reversal of the petitioner’s conviction on

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some other ground, thereby mooting the federal question.

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Sherwood, 716 F.2d at 634 (footnote and remaining citations omitted).

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Other courts in this Circuit also have applied the Sherwood dismissal rule

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where the petitioner had a state habeas petition pending. See, e.g., Lockhart v.

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Hedgpeth, 2008 WL 2260674, **1 (N.D. Cal. 2008); Craft v. Sisko, 2008 WL

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906438, *1-*2 (C.D. Cal. 2008); McDade v. Board of Corrections, 2007 WL

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3146736, *1 (N.D. Cal. 2007); Hancock v. Marshall, 2007 WL 1521002, *1 (N.D.

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Cal. 2007); Kilgore v. Malfi, 2007 WL 1471293, *2-*3 (N.D. Cal. 2007).

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Therefore, the Petition is subject to dismissal.

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IT IS THEREFORE ORDERED that this action be summarily dismissed

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without prejudice, pursuant to Rule 4 of the Rules Governing Section 2254 Cases

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in the United States District Courts.

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LET JUDGEMENT BE ENTERED ACCORDINGLY.

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Dated: May 7, 2011

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___________________________
ANDREW J. GUILFORD
United States District Judge

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Presented by:

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/S/ FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magistrate Judge

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