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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 NERY CALDERON, Case No. 2:19-10219-SVW (GJS) 12 Petitioner ORDER: DISMISSING ACTION; 13 v. AND DENYING A CERTIFICATE OF APPEALABILITY 14 WARDEN, 15 Respondent. 16

17 On December 2, 2019, the Clerk’s Office received an eight-line unsigned 18 letter from Nery Calderon (“Petitioner”), which attached four pages of documents 19 that had been filed repeatedly in Petitioner’s prior habeas action in this District. The 20 Clerk’s Office opted to treat the letter and attached pages as a

21 habeas petition [Dkt. 1, “Petition”], even though it is unsigned, does not contain any 22 of the information required to set forth in a Section 2254 habeas petition (see Rule 2 23 of the Rules Governing Section 2254 Cases in the United States District Courts), 24 and does not plead any habeas claim for relief. Rule 4 of the Rules Governing 25 Section 2254 Cases in the United States District Courts provides that a petition for a 26 writ of habeas corpus “must” be summarily dismissed “[i]f it plainly appears from 27 the petition and any attached exhibits that the petitioner is not entitled to relief in the 28 district court.” Here, it plainly appears that the Petition – like Petitioner’s prior 1 2 entitled to a stay. Therefore, as explained below, this action must be dismissed. 3 4 BACKGROUND 5 The instant Petition fails to provide any information about Petitioner’s state 6 conviction or any post-conviction proceedings. The Court, however, is familiar with 7 Petitioner’s state proceedings due to his prior actions in this District. In addition, 8 pursuant to Rule 201 of the Federal Rules of Evidence, the Court has taken judicial 9 notice of the dockets of the California Court of Appeal and the California Supreme 10 Court available electronically, which contain the following information. 11 In September 2016, Petitioner was convicted in Los Angeles County Superior 12 Court Case No. VA132252 of five counts of lewd acts on a child under 14 and one 13 count of sexual abuse of a child as to one of his victims, and of three counts of rape, 14 one count of aggravated sexual assault of a child, one count of forcible lewd act on a 15 child, and two counts of lewd act on a child as to his other victim. Through 16 appellate counsel, Petitioner pursued a direct appeal, in which he raised a single 17 claim, namely, that the trial court improperly admitted into evidence a police 18 interview that allegedly was obtained in violation of Petitioner’s rights under 19 Miranda v. Arizona,

(1966). The California Court of Appeal rejected 20 the claim on its merits and affirmed the criminal judgment. [See May 25, 2017 21 decision in Case No. B277717.] Petitioner’s appellate counsel then filed a petition 22 for review with respect to this Miranda claim, which was denied on August 9, 2017 23 [Case No. S242211.] 24 On July 30, 2018, Petitioner filed a pro se habeas petition in the California 25 Court of Appeal, which was denied on July 31, 2018 [Case No. B291592]. On 26

27 1 The Court may raise exhaustion problems sua sponte and dismiss a petition summarily for 28 lack of exhaustion. See Boyd v. Thompson,

(9th Cir. 1998); Stone v. City and County of San Francisco,

(9th Cir. 1992). 1 2 Appeal, by which he purported to appeal his above-noted September 2016 3 conviction for a second time. On April 4, 2019, the California Court of Appeal 4 dismissed the putative appeal as an improper, impermissible, and untimely second 5 appeal (Case No. B296454). 6 The dockets for the California Supreme Court show that Petitioner’s only 7 filing in the state high court was his above-described direct appeal petitioner for 8 review raising his Miranda claim. Petitioner has not sought habeas relief in the 9 California Supreme Court. 10 On September 11, 2018, Petitioner filed a

habeas petition in 11 this District in Case No. 2:18-cv-07914-SVW (GJS) (the “7914 Action”). On 12 September 13, 2018, the original petition in the 7914 Action was dismissed with 13 leave to amend, because it was incomplete, unsigned, failed to name a Respondent, 14 and failed to state any habeas claim. On September 28, 2018, Petitioner filed a First 15 Amended Petition in the 7914 Action and then, on October 4, 2018, filed a Second 16 Amended Petition, which challenged Petitioner’s Los Angeles Superior Court 17 conviction in Case No. VA132252. On October 15, 2018, Petitioner was advised 18 that the Second Amended Petition was fully unexhausted and of his attendant 19 options. Petitioner thereafter filed multiple, duplicative motions seeking a Rhines 20 stay, which were denied on February 28, 2019, and the 7914 Action was dismissed 21 without prejudice for lack of exhaustion. 22 After Petitioner initiated the 7914 Action, he filed a separate

23 habeas petition in the United States District Court for the Northern District of 24 California in late October 2018, which thereafter was transferred to this District and 25 assigned Case No. 2:18-cv-10266-SVW (GJS) (the “10266 Action”). The petition 26 in the 10266 Action – like the Second Amended Petition in the 7914 Action – 27 challenged Petitioner’s conviction in LASC Case No. VA132252 and raised 28 essentially the same two claims, namely, that: Petitioner’s daughters falsely accused 1 2 proceedings and utilized an interpreter and, therefore, did not understand those 3 proceedings. On January 22, 2019, the Court dismissed the 10266 Action as 4 duplicative of the 7914 Action. 5 Petitioner did not appeal the Judgments entered in the 7914 Action and the 10266 6 Action. 7 8 DISMISSAL FOR LACK OF EXHAUSTION REMAINS REQUIRED 9 Federal courts may not grant habeas relief to a person held in state custody 10 unless the petitioner has exhausted his available state court remedies as to the 11 issue(s) presented.

(b)(1)(A); Rose v. Lundy,

, 518 12 (1982); Fields v. Waddington,

(9th Cir. 2005) (“We may 13 review the merits of Petitioner’s habeas petition only if he exhausted state court 14 remedies.”). “[T]he exhaustion doctrine is designed to give the state courts a full 15 and fair opportunity to resolve federal constitutional claims before those claims are 16 presented to the federal courts.” O’Sullivan v. Boerckel,

(1999) 17 (emphasis added); see also Baldwin v. Reese,

(2004) (to give the 18 State the chance to pass upon and resolve violations of his federal rights, a state 19 prisoner must exhaust his available state remedies before seeking federal habeas 20 relief). 21 To satisfy the exhaustion requirement, a petitioner must “fairly present” his 22 federal claim to the state courts, i.e., give them a fair opportunity to consider and 23 correct violations of the prisoner’s federal rights. See Duncan v. Henry,

(1995); Peterson v. Lampert,

(9th Cir. 2003) (en 25 banc). A state prisoner seeking relief with respect to a California conviction is 26 required to fairly present his federal claims to the California Supreme Court. See 27 Baldwin,

(a state prisoner must fairly present his claim to a state 28 supreme court having the power of discretionary review); Keating v. Hood,

2 The state court record indicates that the only claim Petitioner may have 3 exhausted is the Miranda claim raised on direct appeal. He has never attempted to 4 raise that claim in this Court, instead asserting only the above-noted two claims. 5 Because Petitioner has not filed a California Supreme Court habeas petition, any 6 claims he raised in his July 2018 California Court of Appeal habeas petition, 7 whether or not they included those two claims, necessarily are unexhausted. In the 8 7914 Action, the Court expressly advised Petitioner of his failure to exhaust and of 9 its consequences. Nonetheless, following the dismissal of the 7914 Action for lack 10 of exhaustion, Petitioner still has not exhausted any federal habeas claim he might 11 wish to pursue in this District. Petitioner stands in the very same position that he 12 did when the 7914 Action was dismissed on February 28, 2019. 13 As noted above, the Court denied Petitioner’s prior request for a Rhines stay in 14 the 7914 Action. Although Petitioner has not asked for such a stay with respect to 15 the instant unexhausted Petition, the Court notes that, even if he had, any such 16 request necessarily would have to be denied for the same reasons that required 17 denial in the 7914 Action [see Dkt. 12 at 4-8, explaining why the “potentially 18 meritorious” requirement for a Rhines stay did not exist with respect to Petitioner’s 19 claims). The instant Petition merely re-presents four documents already filed 20 multiple times in the 7914 Action, which, if construed liberally, appear to raise the 21 same two claims raised in the 7914 Action (as described above). These same 22 documents were before the Court when it concluded that a Rhines stay was not 23 permitted. The Court already has considered Petitioner’s assertions and found them 24 wanting; simply re-filing the same documents does not change anything or take care 25 of the lack of exhaustion problem that Petitioner has failed to cure. Put otherwise, 26 nothing has changed since the February 2019 dismissal of the 7914 Action, and 27 Petitioner’s successive presentation of previously-considered documents does not 28 cause the Court to changes its prior findings, which Petitioner chose not to appeal. 1 For the foregoing reasons, it is plain from the face of the Petition that 2 || summary dismissal of this action is required by Rule 4, because the letter with 3 || attached pages submitted by Petitioner, even if construed as a Section 2254 habeas 4 || petition, presents only a fully unexhausted petition. Accordingly, IT IS ORDERED 5 || that: this action is dismissed, without prejudice, for failure to exhaust available state 6 || remedies; and Judgment shall be entered dismissing this action without prejudice. 7 In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 8 || Cases in the United States District Courts, the Court has considered whether a 9 || certificate of appealability is warranted. See

(c)(2); Slack v. 10 || McDaniel,

(2000). The Court concludes that a certificate of 11 || appealability is unwarranted, and thus, a certificate of appealability is DENIED. 12 IT IS SO ORDERED. 13 14 || DATED: December 18, 2019 fogs STEPHEN V. WILSON 16 UNITED STATES DISTRICT JUDGE 17 Presented by:

GAIL J. STANDISH 20 || UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28