1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DANNY RAY GARCIA, Case No. 5:21-559-JWH (MAR) 12 Petitioner, ORDER SUMMARILY DISMISSING ACTION WITHOUT PREJUDICE 13 v. 14 15 CHRISTIAN PFEIFFER, 16 17 Respondent. 18 19

20 21 22 23 24 25 26 27 1 I. 2 INTRODUCTION 3 On March 30, 2021, Danny Ray Garcia (“Petitioner”) filed a Petition for Writ 4 of Habeas Corpus (“Petition”) pursuant to

. ECF Docket No. 5 (“Dkt.”) 1. On May 4, 2021, the Court issued an “Order to Show Cause Why the 6 Petition Should Not Be Dismissed Due to Failure to Exhaust” (“OSC”). Dkt. 9. 7 While Petitioner has responded to the OSC, Petitioner has failed to show that the 8 Petition has been exhausted. Thus, for the reasons discussed below, the Court 9 summarily DISMISSES this action without prejudice. 10 II. 11 SUMMARY OF PROCEEDINGS 12 On March 30, 2016, Petitioner was convicted of carjacking, robbery, assault 13 with a deadly weapon, and participation in a criminal street gang. Dkt. 1 at 2, 12–14. 14 Petitioner was sentenced to twenty-four (24) years plus thirty (30) years to life.

at 15 14. 16 On March 30, 2021, Petitioner filed the instant Petition in this Court, asserting 17 only one claim of ineffective assistance of counsel. Dkt. 1 at 11. Petitioner bases this 18 claim on his trial counsel’s failure to file a motion to dismiss.

19 On May 4, 2021, the Court issued an OSC instructing Petitioner to explain 20 “whether his claim is or is not exhausted,” as the Petition appears to be unexhausted. 21 Dkts. 1 at 7, 3 at 1, 3. 22 Petitioner filed a response to the OSC (“Response”) on May 19, 2021, claiming 23 that Petitioner “has exhausted his administrative remedies in state court and there is 24 no Kelly or Rhines stay necessary.” Dkt. 10 at 2. Petitioner has not otherwise 25 attempted to show that his ineffective assistance of counsel claim is exhausted. 26 27 1 III. 2 DISCUSSION 3 A. THE PETITION IS SUBJECT TO DISMISSAL AS WHOLLY 4 UNEXHUASTED 5 1. Applicable law 6 A state prisoner must exhaust his or her state court remedies before a federal 7 court may consider granting habeas corpus relief.

(b)(1)(A); 8 O’Sullivan v. Boerckel,

(1999). To satisfy the exhaustion 9 requirement, a habeas petitioner must fairly present his or her federal claims in the 10 state courts in order to give the State the opportunity to pass upon and correct alleged 11 violations of the prisoner’s federal rights. Duncan v. Henry,

(1995) 12 (per curiam). A habeas petitioner must give the state courts “one full opportunity” to 13 decide a federal claim by carrying out “one complete round” of the state’s appellate 14 process in order to properly exhaust a claim. O’Sullivan,

. 15 For a petitioner in California state custody, this generally means that the 16 petitioner must have fairly presented his or her claims in a petition to the California 17 Supreme Court. See

(interpreting

(c)); Gatlin v. Madding, 189

(9th Cir. 1999) (applying O’Sullivan to California). A claim has been 19 fairly presented if the petitioner has both “adequately described the factual basis for 20 [the] claim” and “identified the federal legal basis for [the] claim.” Gatlin, 189 F.3d at 21 888. 22 2. Analysis 23 Here, Petitioner admits that his ineffective assistance of counsel (“IAC”) claim 24 “was not presented to the California Supreme Court as this ground was not part of 25 Petitioner’s Appeal.” Dkt. 1 at 7. Furthermore, Petitioner appears to have filed a 26 habeas petition in California Superior Court containing only one (1) claim: 27 “[i]mproper imposition of sentencing enhancements and Motion to Strike.” Id. at 5. 1 | Petition. Id. However, even if the petition did include Petitioner’s LAC claim, 2 | Petitioner does not indicate that his state petition ever reached the California Supreme 3 | Court. Id. Accordingly, Petitioner’s IAC claim does not appear to have been 4 | presented to the California Supreme Coutt. 5 Petitioner’s Response offers no evidence that Petitioner’s LAC claim is 6 | exhausted.’ Notably, Petitioner’s Response affirmatively rejects a Kelly or Rhines stay 7 | to allow Petitioner to exhaust his claim. Dkt. 10 at 2. Therefore, the Petition is 8 | subject to dismissal without prejudice as wholly unexhausted. 9 IV. 10 ORDER 11 Thus, this Court ORDERS Judgment be entered summarily DISMISSING 12 | this action without prejudice. 13 IT IS SO ORDERED. 14 15 | Dated: July 6, 2021 GM 16 □□□ ORABLE JOHN W. HOLCOMB United States District Judge 18 | Presented by: 19 “Zp : 20 HONORABLE MARGO A. ROCCONI 21 | United States Magistrate Judge 22 23 24 25 26 27 | nin Pttoner’s Resposs ont contin desaraton om coumel hat Peony 28 | ochaust ste wemedies with respect to cach of their cums, See 28 USC. 2540)(HAQ.