1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 ROBERT WAYNE HARRIS, ) No. 5:20-cv-00315-JVS (JDE) ) 12 Petitioner, ) ) ORDER DISMISSING PETITION 13 v. ) ) 14 SAN BERNARDINO, ) ) ) 15 Respondent. ) ) 16 ) 17 I. 18 INTRODUCTION 19 On February 11, 2020, Petitioner Robert Wayne Harris (“Petitioner”), a 20 California state prison inmate, filed a “Petition for a Writ of Habeas Corpus” 21 (Dkt. 1, “Petition” or “Pet.”) in the United States District Court for the 22 Eastern District of California (“Eastern District”), referencing an underlying 23 conviction and sentence imposed by the Superior Court of the State of 24 California for the County of San Bernardino in 2019. On February 14, 2020, 25 the Eastern District transferred the Petition to this Court. Dkt. 2, 3. 26 On February 19, 2020, the assigned magistrate judge issued an order 27 after screening the Petition consistent with the Court’s authority under Rule 4 28 1 of the Rules Governing Section 2254 Cases in the United States District Courts 2 (“Habeas Rules”). Dkt. 5 (“OSC”). The OSC found the Petition suffered from 3 the deficiencies described further below, among others, and ordered Petitioner 4 to, within 30 days, either: (a) file a Notice of Election stating his intent to stand 5 on the Petition; (b) file a First Amended Petition to cure the defects described; 6 or (c) file a Notice of Dismissal. OSC at 1-5. The OSC further provided: 7 Petitioner is cautioned that a failure to file a Notice of 8 Election, First Amended Petition, or Notice of Dismissal in 9 compliance with this Order within 30 days of the date of this 10 Order may result in a recommendation that this action be 11 dismissed for the reasons set forth above and for failure to 12 prosecute and failure to comply with a Court order. See Fed. R. 13 Civ. P. 41(b). 14 OSC at 5-6. Although Petitioner sought and received additional time to file a 15 request to proceed in forma pauperis (Dkt. 6, 7), Petitioner did not otherwise 16 timely comply with the OSC or seek additional time in which to do so. 17 As a result, as set forth below, the Court dismisses the Petition. 18 II. 19 THE PETITION 20 The Petition, prepared on a Judicial Conference of California form, not 21 a federally-approved form, purports to challenge a conviction on February 2, 22 2019 based on a nolo contendere plea and a sentence imposed on November 8, 23 2019, states as the sole ground for relief, “I would like a retr[ial] or a reduce[d] 24 sentence,” and states as its supporting facts, “I wanted to withdraw my plea. 25 But my counsel would not listen and threaten me saying that she would make 26 sure I would get eleven years.” Pet. at 2-3. The Petition reflects that petitioner 27 did not appeal his conviction, did not seek review in the California Supreme 28 Court, and has not filed any other habeas petitions. Pet at 5, 6. 1 III. 2 DISCUSSION 3 Under Rule 4 of the Habeas Rules, the Court is required to review the 4 Petition and, if it plainly appears from the Petition and any attached exhibits 5 that Petitioner is not entitled to relief, the Court must dismiss the Petition. 6 Here, it plainly appears that Petitioner is not entitled to relief. 7 Under

(b), habeas relief may not be granted unless 8 Petitioner has exhausted the remedies available in state courts or an exception 9 to the exhaustion requirement applies. As a matter of comity, a federal court 10 will not entertain a habeas corpus petition unless the petitioner has exhausted 11 the available state judicial remedies on every ground presented in the petition. 12 Rose v. Lundy,

(1982). Under

(b)(1), a 13 habeas petition brought by a person in state custody “shall not be granted 14 unless it appears that – (A) the applicant has exhausted the remedies available 15 in the courts of the State; or (B)(i) there is an absence of available State 16 corrective process; or (ii) circumstances exist that render such process 17 ineffective to protect the rights of the applicant.” Exhaustion requires that the 18 petitioner’s claims be fairly presented to the state courts and be disposed of on 19 the merits by the highest court of the state. James v. Borg,

(9th 20 Cir. 1994); Carothers v. Rhay,

(9th Cir. 1979); see also 21 Libberton v. Ryan,

(9th Cir. 2009). A claim has not been 22 fairly presented to a state court unless the petitioner has described both the 23 operative facts and the federal legal theory on which the claim is based. 24 Duncan v. Henry,

(1995) (per curiam); Picard v. Connor, 25

(1971); Greenway v. Schriro,

(9th Cir. 26 2011). Petitioner has the burden of demonstrating that he has exhausted his 27 available state remedies. See, e.g., Williams v. Craven,

, 1254 28 (9th Cir. 1972) (per curiam). 1 Here, the Petition reflects that Petitioner was convicted following a plea 2 ||of nolo contendere in February 2019 and sentenced in November 2019, but did 3 ||not appeal his conviction, did not seek review in the California Supreme 4 Court, and did not file any other petitions with respect to the conviction. Pet. 5 2, 5-6. Thus, Petitioner has not presented any federal constitutional claims 6 contained in the Petition to the state courts. Petitioner was provided notice of 7 ||the defect and an opportunity to be heard, but he did not timely respond or 8 ||seek additional time in which to do so. It thus plainly appears from the face of 9 ||the Petition none of the claims in the Petition has been exhausted and that the 10 || Petition must be dismissed for failure to exhaust state remedies. See Rose 455 11 at 518-22;

(b)(1). 12 IV. 13 ORDER 14 It is plainly apparent from the face of the Petition that the claims therein 15 || have not been exhausted. Petitioner was provided notice of the defect and an 16 || opportunity to be heard but did not timely respond or seek additional time in 17 || which to do so. As a result, the Court finds the Petition must be dismissed for 18 || failure to exhaust the remedies available in state courts. 19 IT IS THEREFORE ORDERED THAT, under Habeas Rule 4, this 20 || action be dismissed without prejudice and judgment be entered accordingly. 21 Dated: April 07, 2020 : () _|AA 23 4 ( / lg MAE □□□ □□□ 24 1 AMES V. SELNA “United States District Judge 25 Presented By: 26 de 27 J D. EARLY 28 nited States Magistrate Judge