Deshon v. Placer County

Filing 11

ORDER signed by Magistrate Judge Dale A. Drozd on 3/21/14: Petitioner's amended petition for writ of habeas corpus 9 is dismissed without prejudice for failure to exhaust state court remedies. This court declines to issue a certificate of appealability and this action is closed. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICK DAVE DESHON,

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No. 2:13-cv-2084 DAD P

Petitioner,
v.

ORDER

STATE OF CALIFORNIA,
Respondent.

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Petitioner is a state prisoner proceeding pro se. In accordance with the court’s February 4,
2014 order, petitioner has filed an amended petition for a writ of habeas corpus.
PRELIMINARY SCREENING
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

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petition if it “plainly appears from the face of the petition and any exhibits annexed to it that the

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petitioner is not entitled to relief in the district court . . . .” Rule 4, Rules Governing Section 2254

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Cases. See also O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); Gutierrez v. Griggs, 695

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F.2d 1195, 1198 (9th Cir. 1983). The Advisory Committee Notes to Rule 8 of the Rules

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Governing Section 2254 Cases indicate that the court may dismiss a petition for writ of habeas

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corpus at several stages of a case, including “summary dismissal under Rule 4; a dismissal

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pursuant to a motion by the respondent; a dismissal after the answer and petition are considered;

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or a dismissal after consideration of the pleadings and an expanded record.”
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BACKGROUND

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In his amended petition for writ of habeas corpus, petitioner challenges a 2007 judgment

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of conviction for oral copulation by force entered against him in the Placer County Superior

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Court. According to the form petition, petitioner pled nolo contendere to that charge during his

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criminal proceedings. However, according to his pending petition petitioner did not appeal that

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judgment of conviction and has not filed any other petitions, applications, or motions with respect

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to this judgment in state court. In his petition, petitioner claims that his plea was involuntary and

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that he received ineffective assistance of counsel. (Am. Pet. at 2-6.)

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DISCUSSION

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The instant petition will be dismissed because petitioner has failed to exhaust state court

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remedies.1 It is well established that the exhaustion of state court remedies is a prerequisite to the

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granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). Exhaustion may only be

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waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion may

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not be implied or inferred. Thus, state courts must be given the first opportunity to consider and

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address a state prisoner’s habeas corpus claims. See Rhines v. Weber, 544 U.S. 269, 273-74

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(2005) (citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)); King v. Ryan, 564 F.3d 1133, 1138

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(9th Cir. 2009) (“Habeas petitioners have long been required to adjudicate their claims in state

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court - that is, ‘exhaust’ them - before seeking relief in federal court.”); Farmer v. Baldwin, 497

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F.3d 1050, 1053 (9th Cir. 2007) (“This so-called ‘exhaustion requirement’ is intended to afford

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‘the state courts a meaningful opportunity to consider allegations of legal error’ before a federal

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habeas court may review a prisoner’s claims.”) (quoting Vasquez v. Hillery, 474 U.S. 254, 257

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(1986)). A petitioner satisfies the exhaustion requirement by fairly presenting to the highest state

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court all federal claims before presenting those claims to the federal court. See Baldwin v. Reese,

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541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S.

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270, 276 (1971); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008).

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Petitioner has consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C.
§ 636(c). (Doc. No. 7)
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Here, petitioner acknowledges on his form habeas petition filed in this court that he did

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not appeal the judgment of conviction he challenges and has not filed any other petitions,

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applications, or motions challenging his judgment of conviction in state court. (Pet. at 2-4.) In

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addition, according to the California Supreme Court website, petitioner has not filed any appeals

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or habeas petitions before that court related to his 2007 judgment of conviction. Finally,

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petitioner has not alleged that state court remedies are no longer available to him. Accordingly,

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petitioner’s claims for federal habeas relief are unexhausted and will be dismissed without

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prejudice.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s amended petition for writ of habeas corpus (Doc. No. 9) is dismissed

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without prejudice for failure to exhaust state court remedies;

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2. This court declines to issue a certificate of appealability; and

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3. This action is closed.

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Dated: March 21, 2014

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DAD:9
desh2084.156

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