Thomas Bodnar

Filing 4

MEMORANDUM AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS by Judge Dale S. Fischer. IT IS THEREFORE ORDERED that the current Petition is hereby dismissed without prejudice to refiling after exhaustion of state judicial remedies.2 It is further ordered that the Motion for Stay is denied. (mrgo)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) I. PROCEEDINGS AND BACKGROUND On February 17, 2009, Thomas Bodnar ("Petitioner"), filed the current Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. � 2254("Petition"). On the same date, Petitioner filed a Motion to Stay his current criminal proceedings. Petitioner is currently incarcerated at the Riverside County Jail (Robert Presley Detention Center). (Pet. at 1.) According to the Petition, Petitioner has a criminal case pending in the Riverside County Superior Court, case number RIF127887, in which he is charged with one count of attempted lewd act with a child under age fourteen in violation of California Penal Code sections 664 and 288(a). (Pet. at 2; Motion at
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11 THOMAS BODNAR, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case No. EDCV 09-330-DSF (OP) MEMORANDUM AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner, v. UNKNOWN, Respondent.

1 2; Official Court Records1.) As of February 20, 2009, Petitioner's jury trial was 2 still in progress. (Official Court Records.) Petitioner alleges Fourteenth 3 Amendment due process and equal protection claims. (Pet. at 6.) 4 5 6

II. DISCUSSION This Court may entertain a habeas application on behalf of a person who is

7 in custody pursuant to a state court judgment and in violation of the Constitution, 8 laws, or treaties of the United States. 28 U.S.C. � 2254. If it plainly appears 9 from the petition and any attached exhibits that the petitioner is not entitled to 10 relief in the district court, the judge must dismiss the petition and direct the clerk 11 to notify the petitioner. Rule 4 of the Rules Governing Section 2254 Cases in the 12 United States District Courts. 13

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

14 petition unless the petitioner has exhausted the available state judicial remedies 15 on every ground presented in the petition. Rose v. Lundy, 455 U.S. 509, 518-22, 16 102 S. Ct. 1198, 71 L. Ed. 2d 179 (1982). The habeas statute now explicitly 17 provides that a habeas petition brought by a person in state custody "shall not be 18 granted unless it appears that-- (A) the applicant has exhausted the remedies 19 available in the courts of the State; or (B)(i) there is an absence of available State 20 corrective process; or (ii) circumstances exist that render such process ineffective 21 to protect the rights of the applicant." 28 U.S.C. � 2254(b)(1). Moreover, if the 22 exhaustion requirement is to be waived, it must be waived expressly by the State, 23 through counsel. See 28 U.S.C. � 2254(b)(3). 24

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

25 the state courts, and be disposed of on the merits by the highest court of the state. 26 27

The Court takes judicial notice of the state court records for Petitioner's case, which are available on the Internet at http://public-access.riverside.courts.ca.gov. See Smith v. Duncan, 297 F.3d 809, 815 (9th Cir. 2002 ) (federal courts may take 28 judicial notice of relevant state court records in federal habeas proceedings).
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1 See James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994); Carothers v. Rhay, 594 F.2d 2 225, 228 (9th Cir. 1979). A claim has not been fairly presented unless the 3 prisoner has described in the state court proceedings both the operative facts and 4 the federal legal theory on which his claim is based. See Duncan v. Henry, 513 5 U.S. 364, 365-66, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995); Picard v. Connor, 6 404 U.S. 270, 275-78, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Johnson v. Zenon, 7 88 F.3d 828, 830 (9th Cir. 1996). Petitioner has the burden of demonstrating that 8 he has exhausted available state remedies. See, e.g., Brown v. Cuyler, 669 F.2d 9 155, 158 (3d Cir. 1982). 10

Petitioner has failed to allege in the current Petition that the claims raised

11 have been presented to the California Supreme Court. In fact, Petitioner 12 concedes that his current criminal case is still pending. As a result, he could not 13 have exhausted his state judicial remedies prior to the filing of the current 14 Petition. Thus, it appears conclusively from the face of the Petition that the 15 claims alleged have never been presented to the California Supreme Court and 16 are unexhausted. 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 3

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III. ORDER IT IS THEREFORE ORDERED that the current Petition is hereby

4 dismissed without prejudice to refiling after exhaustion of state judicial 5 remedies.2 It is further ordered that the Motion for Stay is denied. 6

The Deputy Clerk of the Court is directed to send Petitioner a copy of this

7 Order. 8 9 DATED: 2/26/09 10 11 12 Presented by: 13 14

HONORABLE DALE S. FISCHER United States District Judge

15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27

HONORABLE OSWALD PARADA

This dismissal does not relieve Petitioner from complying with the one-year statute of limitations set forth in 28 U.S.C. � 2244(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, 28 with respect to any future habeas petitions filed in this Court.
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