1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 WILLIAM BARTON, Case No. CV 20-00078 FMO (RAO) 11

Petitioner, 12 MEMORANDUM AND ORDER v. RE SUMMARY DISMISSAL OF 13 PETITION FOR WRIT OF SAN JOAQUIN, HABEAS CORPUS AND DENIAL 14 OF CERTIFICATE OF Respondent. APPEALABILITY 15 16 17 I. BACKGROUND 18 On January 3, 2020, Petitioner William Ray Barton (“Petitioner”) filed a 19 Petition for Writ of Habeas Corpus (“Petition”). Pet., Dkt. No. 1. 20 Petitioner was convicted of his underlying criminal offense in 1976. Pet. at 2. 21 Petitioner asserts that he can prove his innocence if he has a trial. Id. at 3. Records 22 of the California Supreme Court indicate that Petitioner has not filed any appeals or 23 state habeas petitions with that court.1 24

25 1 The Court takes judicial notice of the records of the California Supreme Court, 26 which are available at http://appellatecases.courtinfo.ca.gov. See Fed. R. Evid. 201(b)(2) (providing that a court may take judicial notice of adjudicative facts that 27 “can be accurately and readily determined from sources whose accuracy cannot 28 reasonably be questioned”); Harris v. Cty. of Orange,

(9th 1 This Court has received multiple habeas petitions from Petitioner starting in 2018, all of which have been dismissed for failure to exhaust state court remedies. 2 See Barton v. People State of California, CV 18-5863-FMO-RAO (C.D. Cal., filed 3 July 3, 2018); Barton v. Superior Court, CV 18-6853-FMO-RAO (C.D. Cal., filed 4 Aug. 9, 2018); Barton v. Board of Parole Hearings, CV 18-9707-FMO-RAO (C.D. 5 Cal., filed Nov. 16, 2018); Barton v. People of the State of California, CV 19-546- 6 FMO-RAO (C.D. Cal., filed Dec. 28, 2018); Barton v. Clerk of U.S. District Court, 7 et al., CV 19-1178-FMO-RAO (C.D. Cal., filed Jan. 25, 2019); Barton v. San 8 Juaquin, CV 19-4831-FMO-RAO (C.D. Cal., filed June 3, 2019); Barton v. Gastelo, 9 CV 19-6535-FMO (RAO) (C.D. Cal., filed July 29, 2019); Barton v. Superior Court, 10 CV 19-7382-FMO (RAO) (C.D. Cal., filed Aug. 26, 2019); Barton v. Superior Court, 11 CV 19-9516-FMO (RAO) (C.D. Cal., filed Nov. 5, 2019). 12 On January 22, 2020, Magistrate Judge Oliver held a hearing in a separate 13 habeas matter brought by Petitioner. Dkt. No. 7, CV 19-10418-FMO (RAO) (C.D. 14 Cal.). At the hearing, Judge Oliver discussed with Petitioner his numerous habeas 15 filings and explained to Petitioner that his two pending petitions, including the 16 Petition in the instant matter, would likely be dismissed for failure to exhaust. 17 Petitioner did not contend at the hearing that he has exhausted any of his habeas 18 claims in the California state court. 19 II. DISCUSSION 20 Under Rule 4 of the Rules Governing Section 2254 Cases in the United States 21 District Courts, the Court may dismiss a petition “[i]f it plainly appears from the 22 petition and any attached exhibits that the petitioner is not entitled to relief in the 23 district court.” The “Ninth Circuit has held that a federal court may raise the failure 24 to exhaust issue sua sponte and may summarily dismiss on that ground.” White v. 25 Paramo, Case No. CV 16-03531-ODW (KES),

, at *2 (C.D. Cal. 26

27 Cir. 2012) (noting that a court may take judicial notice of federal and state court 28 records). 1 May 27, 2016) (citing Granberry v. Greer,

,

,

(1987); Stone v. San Francisco,

, 856 (9th Cir. 1992); 2 Cartwright v. Cupp,

(9th Cir. 1982) (per curiam)) (dismissing 3 petition for failure to exhaust state remedies with respect to sole claim for relief). 4 A state prisoner must exhaust his state court remedies before a federal court 5 may consider granting habeas corpus relief.

(b)(1)(A); O’Sullivan 6 v. Boerckel,

,

, 144 L. Ed. 2d. 1 (1999). To satisfy 7 the exhaustion requirement, a habeas petitioner must fairly present his federal claims 8 in the state courts in order to give the State the opportunity to pass upon and correct 9 alleged violations of the prisoner’s federal rights. Duncan v. Henry,

, 10 365,

,

(1995) (per curiam). A habeas petitioner must 11 give the state courts “one full opportunity” to decide a federal claim by carrying out 12 “one complete round” of the state’s appellate process in order to properly exhaust a 13 claim. O’Sullivan,

. He must present his claims to the highest state 14 court with jurisdiction to consider it or demonstrate that no state remedy remains 15 available. Peterson v. Lampert,

(9th Cir. 2003) (en banc). 16 Here, the records of the California Supreme Court do not reflect any appeals 17 or habeas petitions filed by Petitioner. Although the exhaustion requirement may be 18 excused under limited circumstances, see

(b)(1)(B)(i)-(ii), none of 19 these circumstances appear to exist here. Petitioner has failed to exhaust his claim in 20 state court, and summary dismissal of this action is appropriate. 21 Dismissal of the Petition is without prejudice to Petitioner’s later pursuing 22 habeas relief in federal court upon exhausting available remedies in the state courts. 23 Petitioner is warned, however, that under

(d)(1), “[a] 1-year period 24 of limitations shall apply to an application for a writ of habeas corpus by a person in 25 custody pursuant to the judgment of a State court.” 26 /// 27 /// 28 1 III. CERTIFICATE OF APPEALABILITY Under the Antiterrorism and Effective Death Penalty Act of 1996, a state 2 prisoner seeking to appeal a district court’s final order in a habeas corpus proceeding 3 must obtain a Certificate of Appealability (“COA”) from the district judge or a circuit 4 judge.

(c)(1)(A). A COA may issue “only if the applicant has made 5 a substantial showing of the denial of a constitutional right.”

(c)(2). 6 “A petitioner satisfies this standard by demonstrating that jurists of reason could 7 disagree with the district court’s resolution of his constitutional claims or that jurists 8 could conclude the issues presented are adequate to deserve encouragement to 9 proceed further.” Miller-El v. Cockrell,

,

,

Ed. 2d 931 (2003). 11 When the Court dismisses a petition on procedural grounds, it must issue a 12 COA if the petitioner shows: (1) “that jurists of reason would find it debatable 13 whether the petition states a valid claim of the denial of a constitutional right”; and 14 (2) “that jurists of reason would find it debatable whether the district court was 15 correct in its procedural ruling.” Slack v. McDaniel,

,

1595,

(2000). 17 Here, the Court is summarily dismissing the instant Petition without prejudice 18 because the Court has determined that Petitioner has failed to exhaust his habeas 19 claim in state court. The Court finds that Petitioner cannot make the requisite 20 showing that jurists of reason would find it debatable whether the district court was 21 correct in its procedural ruling. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 1 IV. ORDER 2 Based on the foregoing, IT IS ORDERED THAT: 3 1. The Petition is DISMISSED without prejudice; and 4 2. A Certificate of Appealability is DENIED. 5 6 || DATED: January 31, 2020 7 /s/ FERNANDO M. OLGUIN 8 UNITED STATES DISTRICT JUDGE 9 || Presented by: Reylla , Q2~

12 || ROZELLA A. OLIVER 3 UNITED STATES MAGISTRATE JUDGE

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