Soliz v. Tehama County Superior Court

Filing 15

ORDER signed by Magistrate Judge Edmund F. Brennan on 03/21/17 ordering the petition is dismissed without leave to amend and the court declines to issue a certificate of appealability. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RUBEN SOLIZ,

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Petitioner,

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No. 2:16-cv-1975-EFB P

v.

ORDER

TEHAMA COUNTY SUPERIOR
COURT,
Respondent.

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

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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 claims raised therein are not

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exhausted.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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Petitioner was convicted on October 30, 2015 and sentenced on May 25, 2016. ECF No.

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1. According to the petition, his only post-conviction challenge to his conviction was through a

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filing in the Tehama County Superior Court. Id. at 7, 13. He explains that he did not appeal the

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judgment of conviction or exhaust his state remedies “because [he] thought the Court had given

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[him] ½ time already.” Id. at 13.

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Thus, petitioner concedes that he has not presented the claims raised in his petition to the
California Supreme Court and does not purport to have obtained from the respondent an express
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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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waiver of the exhaustion requirement. See id. Therefore, petitioner has failed to exhaust state

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court remedies, as the California Supreme Court has not yet had the opportunity to resolve

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petitioner’s claims on their merits. See Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002).

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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: March 21, 2017.

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