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).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DAVID BENNETT,
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Petitioner,
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vs.
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GOVERNMENT EMPLOYEE, etc.
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Respondents.
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No. C 13-3641 LHK (PR)
ORDER OF DISMISSAL

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Petitioner, a California state prisoner proceeding pro se, seeks a writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. In the underlying federal petition, petitioner challenged the
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criminal judgment against him, and conceded that he had not raised any claims in the California
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Supreme Court. On October 4, 2013, the court issued an order to petitioner to show cause why
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the petition should not be dismissed for failure to exhaust state remedies. On October 16, 2013,
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petitioner filed a response, conceding that his federal petition challenged the same commitment
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as that which he had recently been found guilty. Petitioner also stated that he exhausted his
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criminal remedies after raising his constitutional issues at trial. On November 18, 2013,
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petitioner filed a “Notice of transfer,” in which he stated that, on November 4, 2013, petitioner
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was sentenced to state prison and would soon be transferred.
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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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Order of Dismissal
G:\PRO-SE\LHK\HC.13\Bennett641disexh.wpd

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proceedings are first required to exhaust state judicial remedies, either on direct appeal or

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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 recently been convicted and sentenced. Petitioner clearly has not yet

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completed a direct appeal, nor pursued any other state proceeding challenging his criminal

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conviction. Thus, it appears that petitioner has not fairly presented his claims in the underlying

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federal petition of habeas corpus to the highest state court. Accordingly, the court DISMISSES

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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 “that jurists of reason would find it debatable whether the petition states a valid claim

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of the denial of a constitutional right.” 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.
12/4/13
DATED: _______________

LUCY H. KOH
United States District Judge

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Order of Dismissal
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