Degarmo v. Secretary of California Department of Corrections and Rehabilitation et al

Filing 12

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST. ***Civil Case Terminated. Signed by Judge Thelton E. Henderson on 08/20/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 8/21/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C-11-4859 TEH (PR)

RAYMOND DEGARMO,
Petitioner,

ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS FOR FAILURE
TO EXHAUST

v.
SECRETARY OF CALIFORNIA
DEPARTMENT OF CORRECTIONS AND
REHABILITATION, et al.,
Respondents.

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On September 30, 2011, Petitioner Raymond DeGarmo, an

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inmate at La Palma Correction Center in Eloy, Arizona, filed a pro

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se petition for a writ of habeas corpus challenging a judgment of

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conviction from Contra Costa County Superior Court.

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2012, the Court ordered Respondents to file an answer showing cause

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why a writ of habeas corpus should not be granted or, in lieu of an

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answer, to file a motion to dismiss on procedural grounds.

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The Order stated, “If Respondent files such a motion, Petitioner

On April 10,

Doc #6.

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shall file with the Court and serve on Respondent an Opposition or

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Statement of Non-Opposition within thirty (30) days of receipt of

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the motion.”

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April 10, 2012 Order at 5.

On July 2, 2012, Respondents filed a motion to dismiss on

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the ground that none of the claims asserted by Petitioner in his

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petition had been exhausted.

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since Respondents filed their motion, and Petitioner has not filed

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an opposition.

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are unexhausted.

More than thirty days have passed

It appears that Petitioner concedes that his claims

United States District Court
For the Northern District of California

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I

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Prisoners in state custody who wish to challenge

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collaterally in federal habeas proceedings either the fact or length

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of their confinement are required first to exhaust state judicial

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remedies, either on direct appeal or through collateral proceedings,

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by presenting the highest state court available with a fair

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opportunity to rule on the merits of each and every claim they seek

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to raise in federal court.

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exhaustion-of-state-remedies doctrine “reflects a policy of

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federal-state comity” designed to give a State “‘an initial

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“opportunity to pass upon and correct” alleged violations of its

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prisoners’ federal rights.’”

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(1971) (citations omitted).

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relief on an unexhausted claim, see 28 U.S.C. § 2254(b)(1).

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See 28 U.S.C. § 2254(b), (c).

The

Picard v. Connor, 404 U.S. 270, 275
The court generally may not grant

Both the legal basis and the factual basis of the claim

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must be “fairly presented” to the state courts in order to exhaust.

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Picard, 404 U.S. at 275; Peterson v. Lampert, 319 F.3d 1153, 1155–56

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(9th Cir. 2003) (en banc).

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It is not sufficient to raise only the
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facts supporting the claim; rather, “the constitutional claim . . .

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inherent in those facts” must be brought to the attention of the

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state court.

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must “be alerted to the fact that the prisoners are asserting claims

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under the United States Constitution.”

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364, 368 (1995).

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“the petitioner must only provide the state court with the operative

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facts, that is, ‘all of the facts necessary to give application to

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the constitutional principle upon which [the petitioner] relies.’”

Picard, 404 U.S. at 277.

The state’s highest court

Duncan v. Henry, 513 U.S.

With regard to the factual basis for the claim,

United States District Court
For the Northern District of California

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Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (citations

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omitted).

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claims, the district court must dismiss the petition.

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Lundy, 455 U.S. 509, 510 (1982); Guizar v. Estelle, 843 F.2d 371,

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372 (9th Cir. 1988).

If state remedies have not been exhausted as to all

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Rose v.

II
After Petitioner was convicted of several crimes, the

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state trial court suspended the execution of sentence and placed

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Petitioner on probation but, later that day, the court reconsidered

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and imposed the previously suspended prison term.

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appealed his conviction to the California court of appeal, which

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affirmed the judgment.

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petition for review in the California Supreme Court.

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In that petition, Petitioner presented the following two issues:

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(1) A court cannot revoke probation without finding a willful

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violation of its terms; and (2) the court’s error is not subject to

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harmless error review, and regardless cannot be harmless error. Id.

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On August 10, 2011, the Supreme Court issued a one-sentence denial.

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Resp.’s Ex. 2.

Petitioner

On June 28, 2011, Petitioner filed a

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Resp.’s Ex. 1.

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Petitioner then filed the instant federal petition in

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which he asserts three claims for relief:

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process of law when the trial court illegally revoked his probation;

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(2) he was denied effective assistance of counsel because his

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counsel failed to challenge the illegal probation revocation; and

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(3) he was denied due process of law because the California court of

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appeal created a non-existent “conditional probation” to justify the

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trial court’s revocation of his probation.

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(1) he was denied due

As correctly pointed out by Respondent, in his petition to

United States District Court
For the Northern District of California

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the California Supreme Court, Petitioner did not raise any claim of

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ineffective assistance of counsel nor did he present any claim as a

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federal constitutional violation.

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Petitioner asserts in his petition are unexhausted.

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Petitioner’s claims are unexhausted, the petition must be dismissed.

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See Castille v. Peoples, 489 U.S. 346, 349 (1989) (petition should

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be dismissed if no claim has been exhausted); Jiminez v. Rice, 276

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F.3d 478, 481 (9th Cir. 2001) (district court required to dismiss

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petition that contains only unexhausted claims).

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Therefore, the three claims
Because all of

III
For the foregoing reasons, Respondent’s motion to dismiss

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for failure to exhaust state remedies is GRANTED.

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instant petition for a writ of habeas corpus is DISMISSED WITHOUT

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PREJUDICE for failure to exhaust state remedies.

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without prejudice to Petitioner's returning to federal court after

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exhausting his state court remedies by presenting his claims to the

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California Supreme Court.

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Doc. #11.

The

This dismissal is

The Clerk is directed to dismiss any pending motions as
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moot and close the file.

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IT IS SO ORDERED.
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DATED

08/20/2012
THELTON E. HENDERSON
United States District Judge

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United States District Court
For the Northern District of California

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