Aaron Vasquez v. Elvin Valenzuela

Filing 13

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge John A. Kronstadt. 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)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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AARON VASQUEZ,

) NO. CV 15-528-JAK(E)
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Petitioner,
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v.
) REPORT AND RECOMMENDATION OF
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ELVIN VALENZUELA,
) UNITED STATES MAGISTRATE JUDGE
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Respondent.
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______________________________)

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This Report and Recommendation is submitted to the Honorable

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John A. Kronstadt, United States District Judge, pursuant to 28 U.S.C.

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section 636 and General Order 05-07 of the United States District

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Court for the Central District of California.

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INTRODUCTION

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Petitioner filed a “Petition for Writ of Habeas Corpus By a

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Person in State Custody” on January 23, 2015.

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challenge a prison disciplinary finding that resulted in a ninety day

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loss of credit (Petition at 2).

The Petition seeks to

According to the Petition, the only

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document submitted to the California Supreme Court in connection with

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the prison disciplinary finding was a habeas petition mailed on

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January 11, 2015 (Petition at 3-4).

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not yet ruled on the recently mailed state petition (Petition at 5).

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It thus appears from the face of the present federal Petition that

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Petitioner has failed to exhaust available state remedies as to any of

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the claims alleged in the Petition.

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be denied and dismissed without prejudice, pursuant to Rule 4 of the

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Rules Governing Section 2254 Cases in the United States District

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The California Supreme Court has

Accordingly, the Petition should

Courts.

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DISCUSSION

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

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writ of habeas corpus unless it appears that the petitioner 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.

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to show compliance with the exhaustion requirement.

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Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981), cert. denied,

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455 U.S. 1023 (1982); see also Coningford v. Rhode Island, 640 F.3d

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478, 482 (1st Cir.), cert. denied, 132 S. Ct. 426 (2011); Morgan v.

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Superior Court of Los Angeles, 2012 WL 6140213, at *2 (C.D. Cal. Oct.

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31, 2012), adopted, 2012 WL 6178430 (C.D. Cal. Dec. 11, 2012).

28 U.S.C. § 2254(b) - (c);

“Comity thus dictates that when a prisoner

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Petitioner bears the burden
See, e.g.,

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“State remedies have not been exhausted unless . . . the highest

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state court has disposed of the claim on the merits. . . .”

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v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979) (citation omitted).

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According to the present Petition, the California Supreme Court has

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not yet adjudicated the merits of any of Petitioner’s claims.

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Accordingly, all of Petitioner’s claims remain unexhausted.

Carothers

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In certain circumstances, the Court has authority to stay a
“mixed” petition, that is, a petition containing both exhausted and

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unexhausted claims.

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(“Rhines”); King v. Ryan, 564 F.3d 1133, 1143 (9th Cir.), cert.

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denied, 558 U.S. 887 (2009) (stay procedure authorized by Kelly v.

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Small, 315 F.3d 1063 (9th Cir.), cert. denied, 548 U.S. 1042 (2003),

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overruled on other grounds, Robbins v. Carey, 481 F.3d 1143 (9th Cir.

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2007) (“Kelly”), remains available after Rhines).

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present Petition is not mixed; it is completely unexhausted.

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Court cannot stay a completely unexhausted petition.

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Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (Rhines stay

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inappropriate); Dimitris v. Virga, 2012 WL 5289484, at *4 & n.3 (C.D.

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Cal. Feb. 16, 2012), adopted, 2012 WL 5267741 (C.D. Cal. Oct. 22,

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2012) (Rhines and Kelly stays inappropriate); Jarrar v. Barnes, 2009

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WL 2394361, at *1 n.1 (E.D. Cal. Aug. 4, 2009) (Kelly stay

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inappropriate); Tappin v. United States District Court, 2008 WL

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686555, at *8 (E.D. Cal. Mar. 11, 2008) (same).

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Petition must be dismissed without prejudice.

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///

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///

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///

See Rhines v. Weber, 544 U.S. 269 (2005)

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However, the
The

See Rasberry v.

Therefore, the

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

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Petition without prejudice.

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DATED: January 26, 2015.

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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