1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 WILLIAM BARTON, Case No. CV 21-02508 FMO (RAO)

12 Petitioner, MEMORANDUM AND ORDER RE SUMMARY DISMISSAL OF 13 v. PETITION FOR WRIT OF HABEAS CORPUS AND DENIAL 14 SAN JOAQUIN, OF CERTIFICATE OF APPEALABILITY 15 Respondent. 16

17 I. BACKGROUND 18 On March 14, 2021, Petitioner William Barton constructively filed a Petition 19 for Writ of Habeas Corpus (“Petition”), which he labels “Petition for Modification 20 of Sentence.” Dkt. No. 1 at 2. 21 Petitioner was convicted of his underlying criminal offense in March 1976. 22 Petition at 2. In the instant Petition, Petitioner asserts that he is not guilty and has 23 appealed his sentence but he fails to set forth any grounds for relief. See Petition at 24 3 (stating that he is “proceed[ing] currently on fourth amend[ed] petition. See ECF 25 No. 38.”). Records of the California Supreme Court indicate that Petitioner has not 26 27 28 1 filed any appeals or state habeas petitions with that court.1 Further, the Court notes 2 that this is the latest of multiple habeas petitions filed by Petitioner starting in 2018, 3 all of which have been dismissed for failure to exhaust state court remedies.2 4 On January 22, 2020, Magistrate Judge Oliver held a hearing in a separate 5 habeas matter brought by Petitioner. See Barton v. Superior Court, CV 19-10418- 6 FMO (RAO), Dkt. No. 7. At the hearing, Judge Oliver discussed with Petitioner his 7 numerous habeas filings and explained the exhaustion requirement. Id. 8 II. DISCUSSION 9 Under Rule 4 of the Rules Governing Section 2254 Cases in the United States 10 District Courts, the Court may dismiss a petition “[i]f it plainly appears from the 11 petition and any attached exhibits that the petitioner is not entitled to relief in the 12 district court.” A federal court may raise the failure to exhaust issue sua sponte and 13 may summarily dismiss on that ground. Stone v. San Francisco,

, 856 14 \\

15 1 The Court takes judicial notice of the records of the California Supreme Court, 16 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 17 “can be accurately and readily determined from sources whose accuracy cannot 18 reasonably be questioned”); Harris v. Cty. of Orange,

(9th Cir. 2012) (noting that a court may take judicial notice of federal and state court 19 records). 20 2 See Barton v. People State of California, CV 18-5863-FMO (RAO) (C.D. Cal., filed July 3, 2018); Barton v. Superior Court, CV 18-6853-FMO (RAO) (C.D. Cal., filed 21 Aug. 9, 2018); Barton v. Board of Parole Hearings, CV 18-9707-FMO (RAO) (C.D. 22 Cal., filed Nov. 16, 2018); Barton v. People of the State of California, CV 19-546- FMO (RAO) (C.D. Cal., filed Dec. 28, 2018); Barton v. Clerk of U.S. District Court, 23 et al., CV 19-1178-FMO (RAO) (C.D. Cal., filed Jan. 25, 2019); Barton v. San 24 Joaquin, CV 19-4831-FMO (RAO) (C.D. Cal., filed June 3, 2019); Barton v. Gastelo, CV 19-6535-FMO (RAO) (C.D. Cal., filed July 29, 2019); Barton v. 25 Superior Court, CV 19-7382-FMO (RAO) (C.D. Cal., filed Aug. 26, 2019); Barton 26 v. Superior Court, CV 19-9516-FMO (RAO) (C.D. Cal., filed Nov. 5, 2019); Barton v. Superior Court, CV 19-10418-FMO (RAO) (C.D. Cal., filed Dec. 6, 2019); Barton 27 v. San Joaquin, CV 20-00078-FMO (RAO) (C.D. Cal., filed Jan. 3, 2020); Barton v. 28 Clerk of Court, CV 20-01304-FMO (RAO) (C.D. Cal., filed Feb. 10, 2020). 1 (9th Cir. 1992) (citing Granberry v. Greer,

,

, 95

(1987).) 3 A state prisoner must exhaust his state court remedies before a federal court 4 may consider granting habeas corpus relief.

(b)(1)(A); O’Sullivan 5 v. Boerckel,

,

, 144 L. Ed. 2d. 1 (1999). To satisfy 6 the exhaustion requirement, a habeas petitioner must fairly present his federal claims 7 in the state courts in order to give the State the opportunity to pass upon and correct 8 alleged violations of the prisoner’s federal rights. Duncan v. Henry,

, 9 365,

,

(1995) (per curiam). A habeas petitioner must 10 give the state courts “one full opportunity” to decide a federal claim by carrying out 11 “one complete round” of the state’s appellate process in order to properly exhaust a 12 claim. O’Sullivan,

. He must present his claims to the highest state 13 court with jurisdiction to consider it or demonstrate that no state remedy remains 14 available. Peterson v. Lampert,

(9th Cir. 2003) (en banc). 15 Here, the records of the California Supreme Court do not reflect any appeals 16 or habeas petitions filed by Petitioner. Although the exhaustion requirement may be 17 excused under limited circumstances, see

(b)(1)(B)(i)-(ii), none of 18 these circumstances appear to exist here. Petitioner has failed to exhaust his claim in 19 state court, and summary dismissal of this action is appropriate. 20 Dismissal of the Petition is without prejudice to Petitioner’s later pursuing 21 habeas relief in federal court upon exhausting available remedies in the state courts. 22 Petitioner is warned, however, that under

(d)(1), “[a] 1-year period 23 of limitations shall apply to an application for a writ of habeas corpus by a person in 24 custody pursuant to the judgment of a State court.” 25 III. CERTIFICATE OF APPEALABILITY 26 A state prisoner seeking to appeal a district court’s final order in a habeas 27 corpus proceeding must obtain a Certificate of Appealability (“COA”) from the 28 district judge or a circuit judge.

(c)(1)(A). A COA may issue “only 1 || if the applicant has made a substantial showing of the denial of a constitutional right.” 2 |}

(c)(2). When the Court dismisses a petition on procedural grounds, 3 || as here, it must issue a COA if the petitioner shows: (1) “that jurists of reason would 4 || find it debatable whether the petition states a valid claim of the denial of a 5 || constitutional right”; and (2) “that jurists of reason would find it debatable whether 6 || the district court was correct in its procedural ruling.” Slack v. McDaniel,

|| 473, 478,

,

(2000). 8 Here, the Court is summarily dismissing the instant Petition without prejudice 9 || because the Court has determined that Petitioner has failed to exhaust his habeas 10 || claim in state court. The Court finds that Petitioner cannot make the requisite 11 || showing that jurists of reason would find it debatable whether the district court was 12 || correct in its procedural ruling. 13 IV. QRDER 14 Based on the foregoing, IT IS ORDERED THAT: 15 1. The Petition is DISMISSED without prejudice; and 16 2. A Certificate of Appealability is DENIED. 17 18 || DATED: March 25, 2021 19 SA FERNANDO M. OLGUIN 20 UNITED STATES DISTRICT JUDGE 21 || Presented by: 23/1 Re

ROZELLA A. OLIVER 2° || UNITED STATES MAGISTRATE JUDGE 26 27 28