Pearson v. Contra Costa County Sheriff Rupf et al

Filing 20

ORDER DISMISSING CASE. Signed by Judge Richard Seeborg on 4/14/10. (cl, COURT STAFF) (Filed on 4/15/2010)

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No. C 09-2477 RS (PR) ORDER OF DISMISSAL *E-Filed 4/15/10* UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION OSCAR PEARSON, Petitioner, v. CONTRA COSTA COUNTY SHERIFF, et al., Respondents. / No. C 09-2477 RS (PR) ORDER OF DISMISSAL INTRODUCTION This is a federal habeas corpus action filed by a pro se state prisoner pursuant to 28 U.S.C. 2254. For the reasons stated herein, respondents' motion to dismiss the petition for failure to exhaust state judicial remedies (Docket No. 16) is GRANTED. Accordingly, the petition is DISMISSED without prejudice to petitioner's filing of proof that he exhausted his state judicial remedies. DISCUSSION Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are first required to exhaust 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 51516 (1982). The state's highest court must be given an opportunity to rule on the claims even if review is discretionary. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke "one complete round of the State's established appellate review process."). Even though non-exhaustion is an affirmative defense, the petitioner bears the burden of proof that state judicial remedies were properly exhausted. Parker v. Kelchner, 429 F.3d 58, 62 (3d Cir. 2005). If available state remedies have not been exhausted as to all claims, the district court must dismiss the petition. See Rose, 455 U.S. at 510. Respondents contend that the instant petition is unexhausted because petitioner never presented his claims to the California Supreme Court for decision. (Mot. to Dismiss ("MTD") at 3.) In the petition, petitioner does not state that he presented his claims to the California Supreme Court. (Pet. at 45.) Petitioner, in his opposition to the motion, concedes that he has not exhausted his claims: "petitioner would suggest that because of state officials intentional [a]ct, any further attempts by him to exhaust state administrative remedies would be inadequate, without support." (Opp. to MTD at 12.) Having reviewed the papers and documents submitted by the parties, this Court concludes that petitioner has not established that he fairly presented his claims to the California Supreme Court for decision. Specifically, petitioner concedes that he has not exhausted his state remedies. Therefore, petitioner has failed to meet his burden of proof that state judicial remedies were properly exhausted with respect to these claims. See Parker, 429 F.3d at 62. Accordingly, respondents' motion to dismiss the claims as unexhausted is GRANTED. The petition is DISMISSED. 2 No. C 09-2477 RS (PR) ORDER OF DISMISSAL 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONCLUSION For the reasons stated above, respondents' motion to dismiss is GRANTED. Accordingly, the petition is DISMISSED without prejudice to petitioner's filing with the Court an amended petition that includes proof that he presented his claims to, and that they were ruled on by, the California Supreme Court. A certificate of appealability will not issue. Petitioner has not shown "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). This order terminates Docket No. 16. The Clerk shall terminate the pending motion, enter judgment in favor of respondents, and close the file. IT IS SO ORDERED. DATED: April 14, 2010 RICHARD SEEBORG United States District Judge 3 No. C 09-2477 RS (PR) ORDER OF DISMISSAL 1 2 THIS IS TO CERTIFY THAT A HARD COPY OF THIS ORDER WAS MAILED TO: Oscar Maurice Pearson T-91151 3 San Quentin State Prison San Quentin, Ca 94974 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 No. C 09-2477 RS (PR) ORDER OF DISMISSAL DATED: 04/15/2010 s/ Chambers Staff Chambers of Judge Richard Seeborg * Counsel are responsible for distributing copies of this document to any co-counsel who have not registered with the Court's electronic filing system.

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