1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROB EMERT, Case No.: 3:23-cv-2318-JES-VET

12 Petitioner, ORDER DISMISSING SECOND 13 v. AMENDED PETITION FOR WRIT OF HABEAS CORPUS WITHOUT 14 SAN DIEGO PROBATION PREJUDICE AND WITHOUT LEAVE DEPARTMENT, 15 TO AMEND Respondent. 16 17 18 19 I. BACKGROUND 20 On December 20, 2023, Petitioner submitted a Petition for Writ of Habeas Corpus 21 pursuant to

, together with a request to proceed in forma pauperis 22 (“IFP”). ECF Nos. 1, 2. On January 2, 2024, the Court denied Petitioner’s IFP application 23 and dismissed the Petition without prejudice. ECF No 5. The Court notified Petitioner 24 that in order to have his case reopened, he must (1) either pay the filing fee or provide 25 adequate proof of his inability to pay and (2) file a First Amended Petition curing the 26 pleading deficiencies outlined in the Court’s Order, no later than February 16, 2024. See 27

. 28 On February 13, 2024, Petitioner submitted the $5.00 filing fee, along with a First 1 Amended Petition (“FAP”). See ECF Nos. 6, 7. On February 26, 2024, the Court 2 dismissed the FAP because Petitioner failed to allege exhaustion of state judicial 3 remedies and failed to name a proper respondent. ECF No. 8. The Court gave Petitioner 4 until March 29, 2024 to file a Second Amended Petition and he did so on March 28, 5 2024. See ECF No. 9. 6 II. FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 7 Review of the Second Amended Petition and attachments show it must also be 8 dismissed for failure to allege exhaustion of state judicial remedies. As discussed in this 9 Court’s previous Orders, habeas petitioners who wish to challenge their state court 10 conviction or custodial sentence, must first exhaust state judicial remedies.

2254(b), (c); Granberry v. Greer,

, 133–34 (1987). To do so, a petitioner 12 must present the California Supreme Court with a fair opportunity to rule on the merits of 13 every issue raised in his or her federal habeas petition.

(b), (c); 14 Granberry, 481 U.S. at 133–34. Moreover, to properly exhaust state court remedies a 15 petitioner must allege, in state court, how one or more of his or her federal rights have 16 been violated. The Supreme Court has stated: “If state courts are to be given the 17 opportunity to correct alleged violations of prisoners’ federal rights, they must surely be 18 alerted to the fact that the prisoners are asserting claims under the United States 19 Constitution.” Duncan v. Henry,

, 365–66. For example, “[i]f a habeas 20 petitioner wishes to claim that an evidentiary ruling at a state court trial denied him [or 21 her] the due process of law guaranteed by the Fourteenth Amendment, he [or she] must 22 say so, not only in federal court, but in state court.”

(emphasis added). 23 Nowhere on the Second Amended Petition does Petitioner allege that he raised his 24 claims in the California Supreme Court. Indeed, he concedes he has not done so. ECF 25 No. 9 at 8–9. Instead, Petitioner asks the Court to “proceed with [his] habeas petition 26 notwithstanding [his] potential exhaustion issues.” Id. at 9. He argues that there are 27 exceptional circumstances in his case warranting excusing his failure to exhaust. 28 Specifically, he alleges the “actions of Commissioner Ratekin, the District Attorney’s 1 office and others . . . have rendered the state court process incapable of providing a full 2 and fair hearing.” Id. at 8–9. 3 Failure to exhaust state judicial remedies may be excused if (1) “there is an 4 absence of available State corrective process” or (2) “circumstances exist that render such 5 process ineffective to protect the rights of the applicant.”

(b)(1)(B)(i)– 6 (ii). The second exception applies “if the [state] corrective process is so clearly deficient 7 as to render futile any effort to obtain relief.” Alfaro v. Johnson,

, 1180 8 (9th Cir. 2017) (quoting Duckworth v. Serrano,

(1981) (per curiam)) 9 (alteration in original). Here, however, Petitioner has the ability to file a habeas petition 10 in the California Supreme Court challenging his conviction and sentence. Petitioner’s 11 vague and conclusory allegations regarding a commissioner and the District Attorney’s 12 Office are wholly insufficient to support his claim that he would be unable to get a fair 13 hearing before the state’s high court. Therefore, Petitioner is not relieved of his obligation 14 to exhaust state court remedies. 15 A habeas petition must be summarily dismissed “[i]f it plainly appears from the 16 face of the petition and any exhibits annexed to it that the petitioner is not entitled to 17 relief in the district court . . ..” Rule 4, 28 U.S.C. foll. § 2254. Here, it appears plain from 18 the Petition that Petitioner is not presently entitled to federal habeas relief because he has 19 not alleged exhaustion of state court remedies. 20 III. CONCLUSION 21 Accordingly, the Court DISMISSES the case without prejudice and without leave 22 to amend. If Petitioner wishes to pursue his claims once he has completed exhaustion of 23 state judicial remedies, he must file a new petition which will be given a new civil case 24 number. The Clerk shall close the case. 25 / / / 26 / / / 27 / / / 28 / / / I IT IS SO ORDERED. 2 Dated: April 4, 2024 3 Str J. 4 Honorable James E. Simmons Jr. 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28