Smyth v. Duffy

Filing 15

ORDER granting 14 MOTION to Dismiss Petition as Unexhausted filed by P. Duffy. Signed by Judge Charles R. Breyer on 3/28/2014. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 3/31/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ROBERT SMYTH, AE-3113,
Petitioner,

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vs.
B. DUFFY, Acting Warden,
Respondent.

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No. C 13-0487 CRB (PR)
ORDER GRANTING
MOTION TO DISMISS
(Docket # 14)

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I.
Petitioner, a state prisoner incarcerated at the California Medical Facility,

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filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254

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challenging a 2010 conviction from the Contra Costa County Superior Court on

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the ground that he received ineffective assistance of counsel.

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On May 28, 2013, the court found that, liberally construed, petitioner’s

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claims of ineffective assistance of counsel appear cognizable under § 2254 and

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ordered respondent to show cause why a writ of habeas corpus should not be

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granted. After several extensions of time, respondent has filed a motion to

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dismiss on the grounds that the petition is wholly unexhausted. Petitioner has not

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filed an opposition or response despite being advised to do so.

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II.
Prisoners in state custody who wish to challenge collaterally in federal

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habeas corpus proceedings either the fact or length of their confinement are first

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required to exhaust state judicial remedies, either on direct appeal or through

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collateral proceedings, 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 to raise in

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federal court. See 28 U.S.C. § 2254(b)-(c). Petitioner has not done so. He has

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not presented the Supreme Court of California with an opportunity to consider

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and rule on his federal claims. See O’Sullivan v. Boerckel, 526 U.S. 838, 845

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(1999) (state’s highest court must be given opportunity to rule on claims even if

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review is discretionary); Larche v. Simons, 53 F.3d 1068, 1071-72 (9th Cir.

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1995) (Supreme Court of California must be given at least one opportunity to

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review state prisoners’ federal claims).

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Petitioner was convicted by a jury of making criminal threats in violation

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of California Penal Code section 422, and was sentenced to four years in state

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prison. He appealed his conviction to the California Court of Appeal claiming

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that the trial court erred in denying his motion for mistrial based on a witness’s

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inadvertent mention of petitioner’s prior conviction. But the court of appeal

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rejected the claim and the Supreme Court of California denied review.

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In his federal petition, petitioner claims ineffective assistance of counsel

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on three grounds: (1) trial counsel purposely sabotaged his defense by failing to

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obtain his phone records, which he contends would have provided exculpatory

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evidence; (2) triAL counsel had petitioner’s cell phone reactivated for a different

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subscriber, an action trial counsel knew would destroy relevant records; and (3)

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trial counsel failed to share exculpatory evidence with him. None of these claims

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were raised in petitioner’s direct appeal or on state collateral review.

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III.

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For the foregoing reasons, respondent’s motion to dismiss (docket #14) for

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failure to exhaust state judicial remedies is GRANTED. See Coleman v.

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Thompson, 501 U.S. 722, 731 (1991) (state prisoner’s federal habeas petition

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should be dismissed if state judicial remedies have not been exhausted as to any

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of the claims in the federal petition). The dismissal is without prejudice to filing

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a new federal petition after state judicial remedies are exhausted.
The clerk shall enter judgment in accordance with this order and close the

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file.

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SO ORDERED.

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DATED:

March 28, 2014
CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\HC.13\Smyth, R.13-0487.mtd.wpd

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