Causey v. Alameda County Superior Court

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 LAMAR CAUSEY, Case No. 22-cv-00265-YGR (PR)

7 Petitioner, ORDER DISMISSING CASE AND DENYING A CERTIFICATE OF 8 v. APPEALABILITY

9 ALAMEDA COUNTY SUPERIOR COURT, 10 Respondent.

11 I. INTRODUCTION 12 Petitioner proceeds with a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. 13 § 2254. The Court ordered petitioner to show cause why the case should not be dismissed as 14 unexhausted. Dkt. 4. To date, petitioner has not filed a response, and the deadline for doing so 15 has passed. 16 II. DISCUSSION 17 A. Standard of Review 18 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 19 custody pursuant to the judgment of a State court only on the ground that he is in custody in 20 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 21 Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 22 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 23 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 24 must “specify all the grounds for relief available to the petitioner . . . [and] state the facts 25 supporting each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. 26 “‘[N]otice’ pleading is not sufficient, for the petition is expected to state facts that point to a ‘real 27 possibility of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 1 431 F.2d 688, 689 (1st Cir. 1970)). “[H]abeas petitions which appear on their face to be legally 2 insufficient are subject to summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 3 98 F.3d 1102, 1108 (9th Cir. 1996) (Schroeder, J., concurring). 4 B. Analysis 5 Before he may challenge either the fact or length of his confinement in a habeas petition in 6 this Court, petitioner must present to the California Supreme Court any claims he wishes to raise 7 in this Court. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every claim raised in federal 8 habeas petition must be exhausted). The general rule is that a federal district court must dismiss a 9 federal habeas petition containing any claim as to which state remedies have not been exhausted. 10 Id. 11 A fully unexhausted federal habeas petition may not be stayed and must be dismissed. See, 12 e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding that a fully unexhausted 13 petition may not be stayed and observing: “Once a district court determines that a habeas petition 14 contains only unexhausted claims, it need not inquire further as to the petitioner’s intentions. 15 Instead, it may simply dismiss the habeas petition for failure to exhaust.”); Jones v. McDaniel, 320 16 Fed. Appx. 784, 786 (9th Cir.2009) (affirming the dismissal of a fully unexhausted petition and 17 denial of a stay, because a “Rhines1 stay is only available for a mixed habeas petition where at 18 least some claims have been exhausted, and none of [petitioner’s] claims were exhausted”). 19 It appeared that petitioner had presented a fully unexhausted petition. In his petition, 20 petitioner asserted that he had not appealed his conviction in state court. Dkt. 1 at 2-3. Petitioner 21 was provided an opportunity to demonstrate that the claims had been exhausted or to file an 22 amended petition raising exhausted claims. Petitioner has not filed a response or otherwise 23 communicated with the Court. 24 III. CONCLUSION 25 The petition is DISMISSED without prejudice, and may be re-filed once the claims have 26 been exhausted. 27 1 Because reasonable jurists would not find the result here debatable, a certificate of 2 || appealability (“COA”) is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) 3 (standard for COA). 4 The Clerk of the Court shall close the file. 5 IT IS SO ORDERED. 6 || Dated: May 10, 2022 J E YVONNE GON EZ ROGERS 7 ted States District Judge 8 9 10 11 12

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