Smith v. People of the State of California

Filing 10

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/11/2015 DISMISSING petitioner's application for a writ of habeas corpus, without prejudice, for failure to exhaust state remedies; the Clerk shall serve a copy of this order, together with a copy of the 2/11/2015 petition, on the Attorney General; the Clerk shall terminate all outstanding motions and clase the case; the court DECLINES to issue a certificate of appealability. CASE CLOSED. (cc: Michael Farrell) (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RADFORD DARRELL SMITH,

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Petitioner,

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No. 2:15-cv-0279-EFB P

v.

ORDER

PEOPLE OF THE STATE OF
CALIFORNIA,
Respondent.

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Petitioner is a county prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254.1 He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a).

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Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs

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of suit.

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Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all

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petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the

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petitioner is not entitled to relief. Here, petitioner challenges the El Dorado County Superior

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Court’s order to extradite him to Arizona. ECF Nos. 1, 6. The court has reviewed the petition

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pursuant to Rule 4 of the Rules Governing § 2254 Cases. As explained below, this action must be

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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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dismissed because petitioner has failed to exhaust available state remedies with respect to the

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claims presented in his petition.2

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A district court may not grant a petition for a writ of habeas corpus unless “the applicant

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

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

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

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presenting the “substance of his federal habeas corpus claim” to the state courts. Picard v.

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Connor, 404 U.S. 270, 278 (1971); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). For a

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California prisoner to exhaust, he must present his claims to the California Supreme Court on

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appeal in a petition for review or on post-conviction in a petition for a writ of habeas corpus. See

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

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Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (to exhaust, prisoner must present claims on

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appeal to California Supreme Court in a petition for review). Unless the respondent specifically

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consents to the court entertaining unexhausted claims, a petition containing such claims must be

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dismissed. See 28 U.S.C. § 2254(b)(3); Picard, 404 U.S. at 275.

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Here, petitioner states that he did not directly appeal the order of extradition but did file

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petitions for writs of habeas corpus in the state superior court and court of appeals. ECF No. 6 at

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3. He concedes that he did not challenge the extradition proceedings in the state supreme court,

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due to his mistaken belief that “the Court of Appeals . . . is the highest court required.” Id. at 6.

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As set forth above, however, petitioner must first present his claims to the California Supreme

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Court before proceeding to federal court. See Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir.

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2002). Because petitioner has not done so, and because he does not claim to have obtained from

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the respondent an express waiver of the exhaustion requirement, this action must be summarily

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dismissed.

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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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Accordingly, it is ORDERED that:

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1. Petitioner’s application for a writ of habeas corpus is dismissed without prejudice for

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failure to exhaust state remedies.
2. The Clerk of the Court is directed to serve a copy of this order, together with a copy of

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the February 11, 2015 petition, on Michael Patrick Farrell, Senior Assistant Attorney

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General for the State of California.

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3. The Clerk of the Court is directed to terminate all outstanding motions and close the
case.
4. The court declines to issue a certificate of appealability.
DATED: March 11, 2015.

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