Bennett v. U.S. Government

Filing 8

*****FILED IN ERROR*****SEE DOCKET NUMBER 10*****ORDER OF DISMISSAL. Signed by Judge Lucy H. Koh on 12/4/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 12/4/2013) Modified on 12/4/2013 (mpb, COURT STAFF).

Download PDF
1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 DAVID BENNETT, 11 Petitioner, 12 vs. 13 GOVERNMENT EMPLOYEE, etc. 14 Respondents. 15 ) ) ) ) ) ) ) ) ) ) No. C 13-3641 LHK (PR) ORDER OF DISMISSAL 16 Petitioner, a California state prisoner proceeding pro se, seeks a writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. In the underlying federal petition, petitioner challenged the 18 criminal judgment against him, and conceded that he had not raised any claims in the California 19 Supreme Court. On October 4, 2013, the court issued an order to petitioner to show cause why 20 the petition should not be dismissed for failure to exhaust state remedies. On October 16, 2013, 21 petitioner filed a response, conceding that his federal petition challenged the same commitment 22 as that which he had recently been found guilty. Petitioner also stated that he exhausted his 23 criminal remedies after raising his constitutional issues at trial. On November 18, 2013, 24 petitioner filed a “Notice of transfer,” in which he stated that, on November 4, 2013, petitioner 25 was sentenced to state prison and would soon be transferred. 26 As the court previously advised petitioner, prisoners in state custody who wish to 27 collaterally challenge either the fact or length of their confinement in federal habeas corpus 28 Order of Dismissal G:\PRO-SE\LHK\HC.13\Bennett641disexh.wpd 1 proceedings are first required to exhaust state judicial remedies, either on direct appeal or 2 through collateral proceedings, by presenting the highest state court available with a fair 3 opportunity to rule on the merits of each and every claim the prisoners seek to raise in federal 4 court. 28 U.S.C. § 2254(b)-(c). The exhaustion-of-state-remedies doctrine reflects a policy of 5 federal-state comity to give the state “the initial ‘opportunity to pass upon and correct alleged 6 violations of its prisoners’ federal rights.’” Picard v. Connor, 404 U.S. 270, 275 (1971) 7 (citations omitted). The exhaustion requirement is satisfied only if the federal claim has been 8 “fairly presented” to the state courts. See id.; Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th 9 Cir. 2003) (en banc). The state’s highest court must be given an opportunity to rule on the 10 claims even if review is discretionary. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) 11 (petitioner must invoke “one complete round of the State’s established appellate review 12 process.”). A federal district court must dismiss a federal habeas petition containing any claim 13 as to which state remedies have not been exhausted. See Rhines v. Webber, 544 U.S. 269, 273 14 (2005). 15 Petitioner has recently been convicted and sentenced. Petitioner clearly has not yet 16 completed a direct appeal, nor pursued any other state proceeding challenging his criminal 17 conviction. Thus, it appears that petitioner has not fairly presented his claims in the underlying 18 federal petition of habeas corpus to the highest state court. Accordingly, the court DISMISSES 19 this action without prejudice for failure to exhaust. 20 The federal rules governing habeas cases brought by state prisoners require a district 21 court that denies a habeas petition to grant or deny a certificate of appealability (“COA”) in its 22 ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. Petitioner has 23 not shown “that jurists of reason would find it debatable whether the petition states a valid claim 24 of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 25 Accordingly, a COA is DENIED. 26 27 IT IS SO ORDERED. 12/4/13 DATED: _______________ LUCY H. KOH United States District Judge 28 Order of Dismissal G:\PRO-SE\LHK\HC.13\Bennett641disexh.wpd 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?