McKelvy v. Harris

Filing 9

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/27/15 ORDERING that the petition is DISMISSED without leave to amend and the court declines to issue a certificate of appealability. CASE CLOSED. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT McKELVY,

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No. 2:14-cv-1617-EFB P

Petitioner,
v.

ORDER

KAMALA HARRIS,

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Respondent.

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Petitioner is a former federal prisoner who is also facing pending charges in state court.

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He proceeds in this action without counsel on a petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254.1 He has paid the filing fee.

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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 petition and any attached exhibits that the petitioner is not

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entitled to relief. See Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 “explicitly

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allows a district court to dismiss summarily the petition on the merits when no claim for relief is

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stated”). Moreover, the Advisory Committee Notes to Rule 8 of the Rules Governing Section

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2254 Cases indicate that the court may dismiss a petition for writ of habeas corpus on its own

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to petitioner’s consent. See 28 U.S.C. § 636;
see also E.D. Cal. Local Rules, Appx. A, at (k)(4).
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motion under Rule 4. However, the court should not dismiss a petition without leave to amend

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unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v.

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Nelson, 440 F.2d 13, 14 (9th Cir. 1971). For the reasons explained below, the petition is

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dismissed without leave to amend, on the ground that the claim raised therein is neither

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cognizable nor exhausted.2

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Petitioner contends that while serving a prison term on a federal sentence, criminal

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charges were pending against him in the Placer County Superior Court. Petitioner filed a request

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for final disposition of all charges pursuant to the Interstate Agreement on Detainers. The

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superior court allegedly refused to rule on petitioner’s request and the state court of appeal denied

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his petition for writ of mandamus. Petitioner claims that the State of California and the Placer

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County Superior Court have violated the Interstate Agreement on Detainers and his right to a

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speedy trial. As relief in this action, petitioner requests that the criminal charges pending against

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him in the Placer County Superior Court be dismissed with prejudice. Petitioner indicates that he

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did not raise his claim in the California Supreme Court because “you cannot appeal the denial of a

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mandamus petition to the California Supreme Court.” ECF No. 1 at 4.

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An application for a writ of habeas corpus by a person in custody under a judgment of a

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state court can be granted only for violations of the Constitution or laws of the United States. 28

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U.S.C. § 2254(a). Here, petitioner is asking the court to compel California to act pursuant to the

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Interstate Agreement on Detainers and dismiss pending criminal charges against him. He does

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not claim to be “in custody in violation of the Constitution or laws or treaties of the United

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States,” and thus, fails to allege that a state court conviction or sentence violates the United States

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Constitution. For this reason, petitioner fails to assert a cognizable claim for federal habeas relief.

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Moreover, a district court may not grant a petition for a writ of habeas corpus unless “the

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applicant has exhausted the remedies available in the courts of the State,” or unless there is no

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State corrective process or “circumstances exist that render such process ineffective to protect the

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rights of the applicant.” 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion

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The court may raise the failure to exhaust issue sua sponte and may summarily dismiss
on that ground. See Stone v. San Francisco, 968 F.2d 850, 856 (9th Cir. 1992).
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requirement by presenting the “substance of his federal habeas corpus claim” to the state courts.

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Picard v. Connor, 404 U.S. 270, 278 (1971); see also Duncan v. Henry, 513 U.S. 364, 365

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(1995). For a California prisoner to exhaust, he must present his claims to the California

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Supreme Court on appeal in a petition for review or on post-conviction in a petition for a writ of

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habeas corpus. See Carey v. Saffold, 536 U.S. 223, 239-40 (2002) (describing California’s habeas

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corpus procedure); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (to exhaust, prisoner

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must present claims on appeal to California Supreme Court in a petition for review). Unless the

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respondent specifically consents to the court entertaining unexhausted claims, a petition

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containing such claims must be dismissed. See 28 U.S.C. § 2254(b)(3); Picard, 404 U.S. at 275.

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Here, petitioner concedes he has not exhausted his claim and does not purport to have

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obtained from the respondent an express waiver of the exhaustion requirement. Thus, petitioner

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has failed to exhaust state court remedies, as the California Supreme Court has not yet had the

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opportunity to resolve petitioner’s claim on its merits. See Greene v. Lambert, 288 F.3d 1081,

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1086 (9th Cir. 2002). This action must therefore be summarily dismissed.

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Accordingly, IT IS HEREBY ORDERED that the petition is dismissed without leave to

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amend and the court declines to issue a certificate of appealability.

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DATED: April 27, 2015.

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