Lopez v. King
Filing
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ORDER OF DISMISSAL; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Lucy H. Koh on 3/13/14. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 3/13/2014)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ELIJAH SAMSON LOPEZ,
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Petitioner,
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vs.
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AUDREY KING,
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Respondent.
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No. C 12-5254 LHK (PR)
ORDER OF DISMISSAL; DENYING
CERTIFICATE OF
APPEALABILITY
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Petitioner, a civilly detained person proceeding pro se, seeks a writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. In the underlying petition, petitioner challenges a 2004 decision
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to commit petitioner under the Sexually Violent Predator Act. Petitioner conceded that he did
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not raise his claims before the California Supreme Court. This court issued an order to petitioner
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to show cause why the petition should not be dismissed for failure to exhaust state court
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remedies. Petitioner has filed a response arguing that he is entitled to proceed because of
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exceptional circumstances. Specifically, petitioner gives reasons as to why he should not be
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adjudged a Sexually Violent Predator. For the reasons stated below, the court DISMISSES the
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petition without prejudice for failure to exhaust.
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As the court previously advised petitioner, prisoners in state custody who wish to
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collaterally challenge either the fact or length of their confinement in federal habeas corpus
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proceedings are first required to exhaust state judicial remedies, either on direct appeal or
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Order of Dismissal; Denying Certificate of Appealability
P:\PRO-SE\LHK\HC.12\Lopez254disexh.wpd
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through 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 the prisoners seek to raise in federal
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court. 28 U.S.C. § 2254(b)-(c). The exhaustion-of-state-remedies doctrine reflects a policy of
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federal-state comity to give the state “the initial ‘opportunity to pass upon and correct alleged
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violations of its prisoners’ federal rights.’” Picard v. Connor, 404 U.S. 270, 275 (1971)
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(citations omitted). The exhaustion requirement is satisfied only if the federal claim has been
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“fairly presented” to the state courts. See id.; Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th
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Cir. 2003) (en banc). The state’s highest court must be given an opportunity to rule on the
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claims even if review is discretionary. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)
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(petitioner must invoke “one complete round of the State’s established appellate review
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process.”). A federal district court must dismiss a federal habeas petition containing any claim
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as to which state remedies have not been exhausted. See Rhines v. Webber, 544 U.S. 269, 273
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(2005).
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Petitioner has not presented any exceptional circumstances to excuse his failure to
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exhaust. Exhaustion is excused if either “there is an absence of available State corrective
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process” or “circumstances exist that render such process ineffective to protect the rights of the
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applicant.” 28 U.S.C. § 2254(b)(1)(B)(i)-(ii); Edelbacher v. Calderon, 160 F.3d 582, 585 (9th
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Cir. 1998) (requiring “extremely unusual circumstances”). Here, petitioner does not demonstrate
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that he is precluded from filing his claims in the California Supreme Court. Moreover,
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petitioner’s concedes that he did not present any of the underlying claims to the California
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Supreme Court before filing this federal petition. Thus, petitioner has not fairly presented his
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claims to the highest state court prior to commencing this action. Accordingly, the court
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DISMISSES this action without prejudice for failure to exhaust.
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The federal rules governing habeas cases brought by state prisoners require a district
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court that denies a habeas petition to grant or deny a certificate of appealability (“COA”) in its
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ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. Petitioner has
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not shown “jurists of reason would find it debatable whether the petition states a valid claim of
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the denial of a constitutional right and that jurists of reason would find it debatable whether the
Order of Dismissal; Denying Certificate of Appealability
P:\PRO-SE\LHK\HC.12\Lopez254disexh.wpd
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district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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Accordingly, a COA is DENIED.
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IT IS SO ORDERED.
3/13/14
DATED: _______________
LUCY H. KOH
United States District Judge
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Order of Dismissal; Denying Certificate of Appealability
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