Gomez v. Knowles

Filing 20

ORDER by Judge Ronald M. Whyte Granting 15 , 16 Motion to Dismiss. (jg, COURT STAFF) (Filed on 3/18/2009)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

*E-FILED - 3/18/09*

HOMERO GOMEZ, vs. Petitioner,

MIKE KNOWLES, Warden, Respondent.

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No. C 06-5496 RMW (PR) ORDER GRANTING RESPONDENT'S MOTION TO DISMISS

(Docket Nos. 15, 16)

Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the petition should not be granted. Respondent filed a motion to dismiss the petition as untimely, an amendment to the motion to dismiss as untimely, petitioner filed two oppositions, and respondent filed a reply brief. Based upon the papers submitted, the court will GRANT respondent's motion and DISMISS the instant petition. BACKGROUND According to the petition, on January 10, 1989, petitioner was sentenced to a term of 20 years 8 months in state prison for being convicted of second-degree murder, escape, and violation of probation in Monterey County Superior Court. (Petition, p. 2.) On August 11, 1989, the California Court of Appeal affirmed the judgment. (Mot., Ex. 1.) Petitioner did not file a petition for review in California Supreme Court. (Petition, p. 5.)
Order Granting Respondent's Motion to Dismiss P:\PRO-SE\SJ.Rmw\HC.06\Gomez496mtdwholunexh.wp1 d

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On June 27, 2000, petitioner filed a state habeas petition in the California Court of Appeal, which was denied on August 31, 2000. (Mot., Ex. 2.) On October 5, 2001, petitioner filed another state habeas petition in California Superior court, which was denied on October 24, 2001. (Amended mot., Exs. 1, 2.) On January 30, 2002, petitioner filed another state habeas petition in California Court of Appeal, which was denied on March 18, 2002. (Mot., Ex. 3.) On September 7, 2006, petitioner filed the instant federal petition raising only claims of ineffective assistance of counsel. DISCUSSION Respondent argues that petitioner's federal habeas petition is over nine years late. (Mot., p. 3.) Respondent also notes that the petition fails to state a claim because it does not state a claim with specificity. (Id., p. 3 n.3.) Further, respondent states that petitioner's claims are unexhausted because he has never filed a petition for review or habeas petition in the California Supreme Court. (Id.) Petitioner responds that his petition is not time-barred because (1) he is a Mexicannational with minimal knowledge of English (Opp., p. 2); (2) he was continually transferred by the Department of Corrections and was limited in his ability to file pleadings to show he was actually innocent (id.); (3) counsel's ineffectiveness amounts to a miscarriage of justice such that his petition should be deemed timely (id., p. 2-9); and (4) he has a state habeas petition pending to conduct DNA testing in order to support his claim of actual innocence (id., p. 11). Petitioner does not address respondent's arguments regarding failure to state a claim or exhaustion. Because the court agrees with respondent that petitioner has failed to exhaust his federal claims, the court will not address the timeliness issue and instead will dismiss the petition for failure to exhaust. 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 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). The state's highest court must
Order Granting Respondent's Motion to Dismiss P:\PRO-SE\SJ.Rmw\HC.06\Gomez496mtdwholunexh.wp2 d

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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."). If available state remedies have not been exhausted as to all claims, the district court must dismiss the petition. See Rose v. Lundy, 455 U.S. 509, 510 (1982). Here, petitioner concedes that the statement of the case given by respondent, including the pleadings filed with the state courts after his state convictions are correct. (Opp., p. 1.) Petitioner did not file a petition for review with the California Supreme Court on direct review. (Petition, p. 5.) Petitioner does not dispute that he has not yet filed any state habeas petition or petition for review in California Supreme Court. Accordingly, because petitioner has not presented his ineffective assistance of counsel claims to the California Supreme Court, the court GRANTS respondent's motion to dismiss. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) ("Once [respondent] moved for dismissal, the district court was obliged to dismiss immediately as the petition contained no exhausted claims.") (internal quotation omitted). CONCLUSION Respondent's motion to dismiss the petition (docket nos. 15, 16) is GRANTED. The instant petition is DISMISSED for failure to exhaust. The clerk shall terminate all pending motions and close the file. IT IS SO ORDERED. Dated:

3/16/09
RONALD M. WHYTE United States District Judge

Order Granting Respondent's Motion to Dismiss P:\PRO-SE\SJ.Rmw\HC.06\Gomez496mtdwholunexh.wp3 d