Bedi v. Hartley

Filing 2

ORDER of Dismissal. Signed by Judge Edward M. Chen on 3/27/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 3/27/2013)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 TAJINDER S. BEDI, 9 Petitioner, v. 11 For the Northern District of California United States District Court 10 No. C-13-0472 EMC (pr) JAMES HARTLEY, Warden, 12 ORDER OF DISMISSAL Respondent. ___________________________________/ 13 14 Petitioner has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to 15 challenge his conviction in the Contra Costa county Superior Court for committing lewd acts on 16 children, see Cal. Penal Code § 288. His conviction was affirmed by the California Court of Appeal 17 on July 19, 2012, and his petition for review was denied by the California Supreme Court on 18 September 26, 2012 in People v. Bedi, Cal. S. Ct. No. S204827. 19 Petitioner's federal petition for writ of habeas corpus is now before the Court for review 20 pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. This Court 21 may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the 22 judgment of a State court only on the ground that he is in custody in violation of the Constitution or 23 laws or treaties of the United States." 28 U.S.C. § 2254(a). A district court considering an 24 application for a writ of habeas corpus shall "award the writ or issue an order directing the 25 respondent to show cause why the writ should not be granted, unless it appears from the application 26 that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. 27 28 The exhaustion rule requires that a prisoner in state custody who wishes to challenge collaterally in federal habeas proceedings either the fact or length of his confinement must first 1 exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by 2 presenting the highest state court available with a fair opportunity to rule on the merits of each and 3 every claim he seeks to raise in federal court. See 28 U.S.C. § 2254(b),(c); Rose v. Lundy, 455 U.S. 4 509, 515-16 (1982). The exhaustion-of-state-remedies doctrine reflects a policy of federal-state 5 comity to give the state "'an initial "opportunity to pass upon and correct" alleged violations of its 6 prisoners' federal rights.'" Picard v. Connor, 404 U.S. 270, 275 (1971) (citations omitted). 7 Although the exhaustion requirement is not jurisdictional and instead is a matter of comity, see 8 Granberry v. Greer, 481 U.S. 129, 133-34 (1987), a district court generally may not grant relief on 9 an unexhausted claim, see 28 U.S.C. § 2254(b)(1). Petitioner reports that he did not file any state habeas petitions, and that the claims he wants 11 For the Northern District of California United States District Court 10 to present here were not presented on his direct appeal. See Petition, pp. 4, 6. He never fairly 12 presented to the California Supreme Court any of the claims that are in his federal petition and 13 therefore has not exhausted any of his claims. The Court cannot stay an action where the petition is 14 fully unexhausted. See Rose v. Lundy, 455 U.S. at 510. Instead, a fully unexhausted petition must 15 be dismissed. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001); see also Creamer v. Ryan, 411 16 F. App'x 985 (9th Cir. 2011). 17 This action is dismissed. This dismissal is without prejudice to Petitioner filing a new 18 petition after he exhausts state court remedies as to each claim contained in his new petition. 19 Because this action is being dismissed today, Petitioner cannot file an amended petition in this 20 action. Instead, he must file a new petition and a new case number will be assigned it when he 21 returns after exhausting his state court remedies. Petitioner is urged to act swiftly to present his 22 claims in state court and then promptly return to this Court to file any new action to avoid being 23 barred by the one-year statute of limitations for federal habeas actions in 28 U.S.C. § 2244(d). 24 The Clerk shall enter judgment and close the file. 25 IT IS SO ORDERED. 26 Dated: March 27, 2013 27 _________________________ EDWARD M. CHEN United States District Judge 28 2

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