Dennis Lee Perry v. People of California

Filing 5

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Josephine Staton Tucker. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Judgment be entered denying and dismissing the Petition without prejudice. (Attachments: # 1 R&R) (sp) Modified on 7/30/2013 (sp).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DENNIS LEE PERRY,

) NO. CV 13-3643-JST(E)
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Petitioner,
)
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v.
) REPORT AND RECOMMENDATION OF
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PEOPLE OF CALIFORNIA,
) UNITED STATES MAGISTRATE JUDGE
)
Respondent.
)
)
______________________________)

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This Report and Recommendation is submitted to the Honorable

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Josephine Staton Tucker, United States District Judge, pursuant to 28

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U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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PROCEEDINGS

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Petitioner filed a “Petition for Writ of Habeas Corpus” in this

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Court1 on May 21, 2013.

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sentence imposed on Petitioner by the Pasadena Superior Court

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(Petition at 2-4).

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appealed the sentence and has not filed any petition, application or

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motion with respect to the sentence (Petition at 5-6).

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appears from the face of the Petition that Petitioner has failed to

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exhaust available state remedies as to any of the claims alleged in

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the Petition.

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dismissed without prejudice, pursuant to Rule 4 of the Rules Governing

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Section 2254 Cases in the United States District Courts.

The Petition challenges an April 10, 2013

According to the Petition, Petitioner has not

It thus

Accordingly, the Petition should be denied and

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DISCUSSION

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A federal court will not grant a state prisoner’s petition for

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writ of habeas corpus unless it appears that the prisoner has

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exhausted available state remedies.

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Baldwin v. Reese, 541 U.S. 27, 29 (2004); O’Sullivan v. Boerckel, 526

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U.S. 838, 842 (1999).

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alleges that his continued confinement for a state court conviction

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violates federal law, the state courts should have the first

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opportunity to review this claim and provide any necessary relief.”

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O’Sullivan v. Boerckel, 526 U.S. at 844.

28 U.S.C. § 2254(b) - (c);

“Comity thus dictates that when a prisoner

State remedies have not been

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The caption of the Petition suggests that Petitioner
may have intended to file the Petition in the Pasadena Superior
Court.
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exhausted unless and until the petitioner’s federal claims have been

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fairly presented to the state’s highest court.

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Peoples, 489 U.S. 346, 350-51 (1989); James v. Borg, 24 F.3d 20, 24

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(9th Cir.), cert. denied, 513 U.S. 935 (1994).

See Castille v.

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Petitioner has not yet presented any of his claims to the

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California Supreme Court.

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claims to that court.

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Rptr. 2d 373, 855 P.2d 391 (1993) (“[H]abeas Corpus has become a

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proper remedy in this state to collaterally attack a judgment of

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conviction which has been obtained in violation of fundamental

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constitutional rights.”) (citations and quotations omitted).2

Petitioner may be able to present his

See In re Harris, 5 Cal. 4th 813, 825, 21 Cal.

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In certain circumstances, the Court has authority to stay a

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“mixed” petition containing both exhausted and unexhausted claims.

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See Rhines v. Weber, 544 U.S. 269 (2005) (“Rhines”); King v. Ryan, 564

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F.3d 1133, 1143 (9th Cir.), cert. denied, 558 U.S. 887 (2009) (stay

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procedure authorized by Kelly v. Small, 315 F.3d 1063 (9th Cir.),

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cert. denied, 548 U.S. 1042 (2003), overruled on other grounds,

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Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007) (“Kelly”), remains

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available after Rhines).

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it is completely unexhausted.

However, the present Petition is not mixed;
The Court cannot stay a completely

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The Court expresses no opinion concerning whether
consideration of a state habeas petition might be foreclosed by
state procedural law. 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, 202 F.3d
1146 (9th Cir.), cert. denied, 531 U.S. 918 (2000).
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unexhausted petition.

See Rasberry v. Garcia, 448 F.3d 1150, 1154

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(9th Cir. 2006) (Rhines stay inappropriate); Dimitris v. Virga, 2012

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WL 5289484, at *4 & n.3 (C.D. Cal. Feb. 16, 2012), adopted, 2012 WL

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5267741 (C.D. Cal. Oct. 22, 2012) (Rhines and Kelly stays

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inappropriate); Jarrar v. Barnes, 2009 WL 2394361, at *1 n.1 (E.D.

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Cal. Aug. 4, 2009) (Kelly stay inappropriate); Tappin v. United States

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District Court, 2008 WL 686555, at *8 (E.D. Cal. Mar. 11, 2008)

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(same).

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prejudice.

Therefore, the Petition must be denied and dismissed without

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RECOMMENDATION

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For the foregoing reasons, IT IS RECOMMENDED that the Court issue

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an Order: (1) accepting and adopting this Report and Recommendation;

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(2) directing that Judgment be entered denying and dismissing the

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Petition without prejudice.

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DATED:

May 23, 2013.

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_______________/S/___________________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

No notice of appeal pursuant to the

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If the District Judge enters judgment adverse to Petitioner, the

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District Judge will, at the same time, issue or deny a certificate of

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appealability.

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and Recommendation, the parties may file written arguments regarding

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whether a certificate of appealability should issue.

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Within twenty (20) days of the filing of this Report