James v. People of the State California et al

Filing 4

ORDER by Judge Lucy H. Koh granting 3 Motion to Dismiss (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 11/13/2012)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 ) ) ) ) ) ) ) ) ) ) ) MICHAEL JAMES, 11 Petitioner, 12 v. 13 14 15 WARDEN KEVIN CHAPPELL, Respondent. No. C 12-1475 LHK (PR) ORDER GRANTING MOTION TO DISMISS 16 17 Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 18 28 U.S.C. § 2254 challenging his conviction and sentence. Respondent has filed a motion to 19 dismiss for failure to exhaust. Although given an opportunity, Plaintiff did not file an 20 opposition. For the reasons below, the Court GRANTS Respondent’s motion to dismiss, and 21 DISMISSES this action. 22 23 BACKGROUND Petitioner challenges his 2009 criminal conviction and sentence in the Alameda County 24 Superior Court. (Pet. at 2.) That same year, a petition to revoke Petitioner’s probation was filed, 25 and on October 13, 2009, the trial court found Petitioner in violation of his probation, and 26 committed him to 120 days in jail. (Mot. at 2.) The California Court of Appeal affirmed both 27 Petitioner’s original conviction, as well as the probation revocation, on May 11, 2011. (Mot., 28 Ex. 1, App. A.) On July 27, 2011, the California Supreme Court denied review. (Mot., Ex. 2.) Order Granting Motion to Dismiss G:\PRO-SE\SJ.LHK\HC.12\James475mtdexh.wpd 1 Petitioner did not file any state habeas petitions challenging these convictions. The underlying 2 federal petition was filed on March 23, 2012. 3 In its order to show cause, this Court found that Petitioner presented two cognizable 4 claims: (1) Petitioner’s no contest plea was involuntary because he was not informed of the 5 direct consequences when accepting the plea, and (2) the prosecution withheld favorable, 6 exculpatory evidence. 7 8 9 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 state 10 judicial remedies, either on direct appeal or through collateral proceedings, by presenting the 11 highest state court available with a fair opportunity to rule on the merits of each and every claim 12 they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The exhaustion-of-state- 13 remedies doctrine reflects a policy of federal-state comity to give the state “the initial 14 ‘opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.’” Picard 15 v. Connor, 404 U.S. 270, 275 (1971) (citations omitted). The exhaustion requirement is satisfied 16 only if the federal claim has been “fairly presented” to the state courts. See id.; Peterson v. 17 Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) (en banc). The state’s highest court must be 18 given an opportunity to rule on the claims even if review is discretionary. See O’Sullivan v. 19 Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke “one complete round of the State’s 20 established appellate review process.”). A federal district court must dismiss a federal habeas 21 petition containing any claim as to which state remedies have not been exhausted. See Rhines v. 22 Webber, 544 U.S. 269, 273 (2005). 23 Respondent moves to dismiss the petition on the ground that Petitioner failed to exhaust 24 either claim. Respondent attached a copy of Petitioner’s petition for review to the California 25 Supreme Court, which shows that the only claims Petitioner raised to the highest state court 26 were: (1) the trial court abused its discretion by denying Petitioner’s request to continue the 27 probation revocation hearing, and (2) the probation revocation was improperly based on a 28 finding that Petitioner was an aider and abettor. (Mot., Ex. 1 at 12-18.) Petitioner has not Order Granting Motion to Dismiss G:\PRO-SE\SJ.LHK\HC.12\James475mtdexh.wpd 2 1 submitted any evidence to the contrary. Thus, it appears that Petitioner has not fairly presented 2 his claims in the underlying federal petition of habeas corpus to the highest state court. 3 Accordingly, the Court GRANTS Respondent’s motion to dismiss and DISMISSES this action. 4 5 6 7 CONCLUSION For the foregoing reasons, Respondent’s motion to dismiss is GRANTED. The petition is dismissed because state court remedies were not exhausted before the petition was filed. The federal rules governing habeas cases brought by state prisoners require a district 8 court that denies a habeas petition to grant or deny a certificate of appealability (“COA”) in its 9 ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. Petitioner has 10 not shown “that jurists of reason would find it debatable whether the petition states a valid claim 11 of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 12 Accordingly, a COA is DENIED. 13 The clerk shall terminate any pending motions and close the file. 14 IT IS SO ORDERED. 15 DATED: 11/12/12 LUCY H. KOH United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Granting Motion to Dismiss G:\PRO-SE\SJ.LHK\HC.12\James475mtdexh.wpd 3

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