Lopez v. King

Filing 8

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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 ELIJAH SAMSON LOPEZ, 11 Petitioner, 12 vs. 13 AUDREY KING, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) No. C 12-5254 LHK (PR) ORDER OF DISMISSAL; DENYING CERTIFICATE OF APPEALABILITY 16 Petitioner, a civilly detained person proceeding pro se, seeks a writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. In the underlying petition, petitioner challenges a 2004 decision 18 to commit petitioner under the Sexually Violent Predator Act. Petitioner conceded that he did 19 not raise his claims before the California Supreme Court. This court issued an order to petitioner 20 to show cause why the petition should not be dismissed for failure to exhaust state court 21 remedies. Petitioner has filed a response arguing that he is entitled to proceed because of 22 exceptional circumstances. Specifically, petitioner gives reasons as to why he should not be 23 adjudged a Sexually Violent Predator. For the reasons stated below, the court DISMISSES the 24 petition without prejudice for failure to exhaust. 25 As the court previously advised petitioner, prisoners in state custody who wish to 26 collaterally challenge either the fact or length of their confinement in federal habeas corpus 27 proceedings are first required to exhaust state judicial remedies, either on direct appeal or 28 Order of Dismissal; Denying Certificate of Appealability P:\PRO-SE\LHK\HC.12\Lopez254disexh.wpd 1 through collateral proceedings, by presenting the highest state court available with a fair 2 opportunity to rule on the merits of each and every claim the prisoners seek to raise in federal 3 court. 28 U.S.C. § 2254(b)-(c). The exhaustion-of-state-remedies doctrine reflects a policy of 4 federal-state comity to give the state “the initial ‘opportunity to pass upon and correct alleged 5 violations of its prisoners’ federal rights.’” Picard v. Connor, 404 U.S. 270, 275 (1971) 6 (citations omitted). The exhaustion requirement is satisfied only if the federal claim has been 7 “fairly presented” to the state courts. See id.; Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th 8 Cir. 2003) (en banc). The state’s highest court must be given an opportunity to rule on the 9 claims even if review is discretionary. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) 10 (petitioner must invoke “one complete round of the State’s established appellate review 11 process.”). A federal district court must dismiss a federal habeas petition containing any claim 12 as to which state remedies have not been exhausted. See Rhines v. Webber, 544 U.S. 269, 273 13 (2005). 14 Petitioner has not presented any exceptional circumstances to excuse his failure to 15 exhaust. Exhaustion is excused if either “there is an absence of available State corrective 16 process” or “circumstances exist that render such process ineffective to protect the rights of the 17 applicant.” 28 U.S.C. § 2254(b)(1)(B)(i)-(ii); Edelbacher v. Calderon, 160 F.3d 582, 585 (9th 18 Cir. 1998) (requiring “extremely unusual circumstances”). Here, petitioner does not demonstrate 19 that he is precluded from filing his claims in the California Supreme Court. Moreover, 20 petitioner’s concedes that he did not present any of the underlying claims to the California 21 Supreme Court before filing this federal petition. Thus, petitioner has not fairly presented his 22 claims to the highest state court prior to commencing this action. Accordingly, the court 23 DISMISSES this action without prejudice for failure to exhaust. 24 The federal rules governing habeas cases brought by state prisoners require a district 25 court that denies a habeas petition to grant or deny a certificate of appealability (“COA”) in its 26 ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. Petitioner has 27 not shown “jurists of reason would find it debatable whether the petition states a valid claim of 28 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 2 1 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 2 Accordingly, a COA is DENIED. 3 4 IT IS SO ORDERED. 3/13/14 DATED: _______________ LUCY H. KOH United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order of Dismissal; Denying Certificate of Appealability P:\PRO-SE\LHK\HC.12\Lopez254disexh.wpd 3

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