Filed: Feb. 21, 2017
Latest Update: Feb. 21, 2017
Summary: MEMORANDUM DECISION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE JEAN ROSENBLUTH , Magistrate Judge . On November 4, 2016, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody, raising two claims. Petitioner consented to having the assigned U.S. Magistrate Judge conduct all further proceedings in his case, including entering final judgment. On December 8, 2016, Respondent filed a motion to
Summary: MEMORANDUM DECISION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE JEAN ROSENBLUTH , Magistrate Judge . On November 4, 2016, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody, raising two claims. Petitioner consented to having the assigned U.S. Magistrate Judge conduct all further proceedings in his case, including entering final judgment. On December 8, 2016, Respondent filed a motion to ..
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MEMORANDUM DECISION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE
JEAN ROSENBLUTH, Magistrate Judge.
On November 4, 2016, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody, raising two claims. Petitioner consented to having the assigned U.S. Magistrate Judge conduct all further proceedings in his case, including entering final judgment. On December 8, 2016, Respondent filed a motion to dismiss the Petition as fully unexhausted; he also consented to proceed before the Magistrate Judge. On January 13, 2017, after Petitioner failed to timely respond to the motion, the Court ordered Respondent to re-serve it on him at what appeared to be his new place of incarceration and sua sponte extended the time for Petitioner to oppose the motion. Still, he failed to file opposition or respond in any way.
The Petition is, as Respondent argues, fully unexhausted. Petitioner apparently pleaded guilty to second-degree robbery in July 2016. (Pet. at 2.) Although the Petition indicates that Petitioner did not appeal (id.), he apparently attempted to do so, but the appeal was dismissed on December 20, 2016, because it was untimely and Petitioner had not obtained a certificate of probable cause. See Cal. App. Cts. Case Info., http:// appellatecases.courtinfo.ca.gov/search/case/ dockets.cfm?dist=2&doc_id=2171119&doc_no=B279243 (last visited Feb. 21, 2017). He also has never filed any sort of petition in the state supreme court. Id. (search in supreme-court database under Petitioner's name). Accordingly, the Petition's two claims are necessarily unexhausted. See Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002) (to exhaust habeas claim, petitioner must fairly present it to state's highest court). Fully unexhausted habeas petitions should be dismissed unless the petitioner obtains a stay under Rhines v. Weber, 544 U.S. 269 (2005). See Mena v. Long, 813 F.3d 907, 908, 910-11 (9th Cir. 2016). Here, Respondent alerted Petitioner in his motion to dismiss to Petitioner's need to obtain a Rhines stay (see Mot. at 4-5), but Petitioner never requested one. Accordingly, the Petition must be dismissed without prejudice.1 Should Petitioner subsequently exhaust his claims in state court, he may file another federal habeas petition.2 The Court takes no position on whether any such petition would be timely.
ORDER
IT IS ORDERED that Judgment be entered dismissing the Petition without prejudice.
