Buggs v. The State of California

• Court: District Court, N.D. California
• Decided: March 29, 2023
• Docket: 5:22-cv-06335
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 DAVID BUGGS, 11 Case No. 22-cv-06335 EJD (PR) Petitioner, 12 ORDER OF DISMISSAL; v. GRANTING MOTION FOR LEAVE 13 TO PROCEED IN FORMA 14 STATE OF CALIFORNIA, et al., P FA OU RP AE PR PI OS; I D NTE MNY EI NN TG O R FE QUEST COUNSEL AS MOOT 15 Respondents. 16 (Docket No. 7, 10)

18 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254, challenging his state sentence out of San Diego 20 County.1 Dkt. No. 1. Petitioner filed a request for appointment of counsel, Dkt. No. 7, and 21 a motion for leave to proceed in forma pauperis. Dkt. No. 10. 22 23 BACKGROUND 24 Petitioner pleaded guilty in San Diego County Superior Court, to California Penal 25 Codes §§ 187(a) and 12022. Dkt. No. 1 at 2. Petitioner was also sentenced under the three 26 strikes law, and sentenced on November 4, 2014, to thirty-one years to life. Id. at 1-2. 27 1 Petitioner did not seek a direct appeal. Dkt. No. 1 at 2. However, Petitioner filed a 2 petition to recall his sentence (“SB1437”) in the state appellate court. Dkt. No. 1 at 3. The 3 petition was denied in March 2019. Id. Petitioner indicates that he did not pursue the 4 matter to the state high court. Id. 5 Petitioner filed this federal habeas action on October 21, 2022. 6 7 DISCUSSION 8 A. Exhaustion 9 Prisoners in state custody who wish to challenge collaterally in federal habeas 10 proceedings either the fact or length of their confinement are first required to exhaust state 11 judicial remedies, either on direct appeal or through collateral proceedings, by presenting 12 the highest state court available with a fair opportunity to rule on the merits of each and 13 every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b)-(c). If available 14 state remedies have not been exhausted as to all claims, the district court must dismiss the 15 petition. Duckworth v. Serrano, 454 U.S. 1, 3-5 (1981). Before he may challenge either 16 the fact or length of his confinement in a habeas petition in this Court, petitioner must 17 present to the California Supreme Court any claims he wishes to raise in this court. See 18 Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every claim raised in federal habeas 19 petition must be exhausted). If available state remedies have not been exhausted as to all 20 claims, the district court must dismiss the petition. See id., 455 U.S. at 510; Guizar v. 21 Estelle, 843 F.2d 371, 372 (9th Cir. 1988). 22 Petitioner indicates that he did not pursue review in the state high court, either on 23 direct appeal or on his more recent petition for recall of his sentence. See supra at 2-3. 24 Accordingly, it is clear from the petition that Petitioner did not present the claims from the 25 instant petition to the California Supreme Court, either on direct appeal or in a state habeas 26 action, before filing this action. Therefore, the petition is not ripe for federal review 27 because Petitioner has still not exhausted his state remedies. See Rose, 455 U.S. at 522. 1 || federal habeas corpus petition once state remedies have been exhausted. 2 3 CONCLUSION 4 For the foregoing reasons, the petition for writ of habeas corpus is DISMISSED for 5 failure to exhaust state remedies. See Rose, 455 U.S. at 510. The dismissal is without 6 || prejudice to Petitioner refiling once he has exhausted state judicial remedies with respect 7 || to any cognizable claims raised. 8 Petitioner’s motion for leave to proceed in forma pauperis is GRANTED. Dkt. No. 9 || 10. Petitioner’s request for appointment of counsel is DENIED as moot. Dkt. No. 7. 10 This order terminates Docket Nos. 7 and 10. 11 IT IS SO ORDERED. 12 |] Dated: March 29, 2023 □□□ EDWARD J. DAVILA 13 United States District Judge

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