Martinez v. Robertson

Opinion

RENE ESPINOZA MARTINEZ, Case No. 21-cv-01091-YGR (PR)

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

JIM ROBERTSON, Warden, Respondent.

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

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