1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 WILLIAM BARTON, Case No. CV 21-05125 FMO (RAO)

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

17 I. BACKGROUND 18 On June 17, 2021, Petitioner William Barton constructively filed a Petition for 19 Writ of Habeas Corpus (“Petition”), which he labels “Fourth Amended Petition for 20 Writ of Habeas Corpus by a Person in State Custody.” Dkt. No. 1 at 1. 21 Petitioner was convicted of his underlying criminal offense in 1976. Petition 22 at 2. The instant Petition does not set forth any grounds for relief. See Petition at 5. 23 Records of the California Supreme Court indicate that Petitioner has not filed any 24 appeals or state habeas petitions with that court.1 Further, the Court notes that this is 25

26 1 The Court takes judicial notice of the records of the California Supreme Court, which are available at http://appellatecases.courtinfo.ca.gov. See Fed. R. Evid. 27 201(b)(2) (providing that a court may take judicial notice of adjudicative facts that 28 “can be accurately and readily determined from sources whose accuracy cannot 1 the latest of multiple habeas petitions filed by Petitioner starting in 2018, all of which 2 have been dismissed for failure to exhaust state court remedies.2 3 On January 22, 2020, Magistrate Judge Oliver held a hearing in a separate 4 habeas matter brought by Petitioner. See Barton v. Superior Court, CV 19-10418- 5 FMO (RAO), Dkt. No. 7. At the hearing, Judge Oliver discussed with Petitioner his 6 numerous habeas filings and explained the exhaustion requirement. Id. 7 II. DISCUSSION 8 Under Rule 4 of the Rules Governing Section 2254 Cases in the United States 9 District Courts, the Court may dismiss a petition “[i]f it plainly appears from the 10 petition and any attached exhibits that the petitioner is not entitled to relief in the 11 district court.” A federal court may raise the failure to exhaust issue sua sponte and 12 may summarily dismiss on that ground. Stone v. San Francisco,

, 856 13 (9th Cir. 1992) (citing Granberry v. Greer,

,

, 95

(1987).) 15 A state prisoner must exhaust his state court remedies before a federal court 16 may consider granting habeas corpus relief.

(b)(1)(A); O’Sullivan

17 reasonably be questioned”); Harris v. Cty. of Orange,

(9th 18 Cir. 2012) (noting that a court may take judicial notice of federal and state court records). 19 2 See Barton v. People State of California, CV 18-5863-FMO (RAO) (C.D. Cal., filed 20 July 3, 2018); Barton v. Superior Court, CV 18-6853-FMO (RAO) (C.D. Cal., filed Aug. 9, 2018); Barton v. Board of Parole Hearings, CV 18-9707-FMO (RAO) (C.D. 21 Cal., filed Nov. 16, 2018); Barton v. People of the State of California, CV 19-546- 22 FMO (RAO) (C.D. Cal., filed Dec. 28, 2018); Barton v. Clerk of U.S. District Court, et al., CV 19-1178-FMO (RAO) (C.D. Cal., filed Jan. 25, 2019); Barton v. San 23 Joaquin, CV 19-4831-FMO (RAO) (C.D. Cal., filed June 3, 2019); Barton v. 24 Gastelo, CV 19-6535-FMO (RAO) (C.D. Cal., filed July 29, 2019); Barton v. Superior Court, CV 19-7382-FMO (RAO) (C.D. Cal., filed Aug. 26, 2019); Barton 25 v. Superior Court, CV 19-9516-FMO (RAO) (C.D. Cal., filed Nov. 5, 2019); Barton 26 v. Superior Court, CV 19-10418-FMO (RAO) (C.D. Cal., filed Dec. 6, 2019); Barton v. San Joaquin, CV 20-00078-FMO (RAO) (C.D. Cal., filed Jan. 3, 2020); Barton v. 27 Clerk of Court, CV 20-01304-FMO (RAO) (C.D. Cal., filed Feb. 10, 2020); Barton 28 v. San Joaquin, CV 21-2508-FMO (RAO) (C.D. Cal., filed Mar. 22, 2021). 1 v. Boerckel,

,

, 144 L. Ed. 2d. 1 (1999). To satisfy 2 the exhaustion requirement, a habeas petitioner must fairly present his federal claims 3 in the state courts in order to give the State the opportunity to pass upon and correct 4 alleged violations of the prisoner’s federal rights. Duncan v. Henry,

, 5 365,

,

(1995) (per curiam). A habeas petitioner must 6 give the state courts “one full opportunity” to decide a federal claim by carrying out 7 “one complete round” of the state’s appellate process in order to properly exhaust a 8 claim. O’Sullivan,

. He must present his claims to the highest state 9 court with jurisdiction to consider it or demonstrate that no state remedy remains 10 available. Peterson v. Lampert,

(9th Cir. 2003) (en banc). 11 Here, the records of the California Supreme Court do not reflect any appeals 12 or habeas petitions filed by Petitioner. Although the exhaustion requirement may be 13 excused under limited circumstances, see

(b)(1)(B)(i)-(ii), none of 14 these circumstances appear to exist here. Petitioner has failed to exhaust his claim in 15 state court, and summary dismissal of this action is appropriate. 16 Dismissal of the Petition is without prejudice to Petitioner’s later pursuing 17 habeas relief in federal court upon exhausting available remedies in the state courts. 18 Petitioner is warned, however, that under

(d)(1), “[a] 1-year period 19 of limitations shall apply to an application for a writ of habeas corpus by a person in 20 custody pursuant to the judgment of a State court.” 21 III. CERTIFICATE OF APPEALABILITY 22 A state prisoner seeking to appeal a district court’s final order in a habeas 23 corpus proceeding must obtain a Certificate of Appealability (“COA”) from the 24 district judge or a circuit judge.

(c)(1)(A). A COA may issue “only 25 if the applicant has made a substantial showing of the denial of a constitutional right.” 26

(c)(2). When the Court dismisses a petition on procedural grounds, 27 as here, it must issue a COA if the petitioner shows: (1) “that jurists of reason would 28 find it debatable whether the petition states a valid claim of the denial of a 1 | constitutional right’; and (2) “that jurists of reason would find it debatable whether 2 || the district court was correct in its procedural ruling.” Slack v. McDaniel,

|| 473, 478,

,

(2000). 4 Here, the Court is summarily dismissing the instant Petition without prejudice 5 || because the Court has determined that Petitioner has failed to exhaust his habeas 6 || claim in state court. The Court finds that Petitioner cannot make the requisite 7 || showing that jurists of reason would find it debatable whether the district court was 8 || correct in its procedural ruling. 9 IV. OQRDER 10 Based on the foregoing, IT IS ORDERED THAT: 11 1. The Petition is DISMISSED without prejudice; and 12 2. A Certificate of Appealability is DENIED. 13 14 | DATED: June 30, 2021 /s/ 15 S$ S$ FERNANDO M. OLGUIN 16 UNITED STATES DISTRICT JUDGE 17 1g || Presented by: 19 . | eee Oo CON ROZELLA A. OLIVER 1 | UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28