1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARCEL BROOKS, Case No. 22-cv-06334-JST

8 Petitioner, ORDER OF DISMISSAL; DENYING 9 v. CERTIFICATE OF APPEALABILITY

10 CHRISTOPHER PIERCE, Respondent. 11

12 13 Petitioner Marcel Brooks, an inmate at Ironwood State Prison, filed a pro se petition for a 14 writ of habeas corpus pursuant to

challenging a conviction from Alameda 15 County Superior Court. ECF Nos. 1, 5. For the reasons set forth below, the Court DISMISSES 16 the petition for failure to exhaust state court remedies, and DENIES a certificate of appealability. 17 DISCUSSION 18 The petition states the following cognizable claim for federal habeas relief: trial counsel 19 was ineffective because he failed to review all the discovery, was unaware of exculpatory text 20 messages, and did not hire a private investigator to interview two key witnesses who would have 21 proven Petitioner’s innocence. ECF Nos. 5, 14. 22 On February 10, 2025, the Court granted Respondent’s motion to dismiss, finding that 23 Petitioner had not exhausted state court remedies for his ineffective assistance of counsel claim. 24 ECF No. 21. The Court ordered Petitioner to elect whether he wished to (1) voluntarily dismiss 25 this petition and return to state court to exhaust his claim before filing a new federal petition 26 presenting only fully-exhausted claims ; or (2) stay and abey this petition while he returns to state 27 court to exhaust his claims.

The Court instructed Petitioner to notify the Court of his election 1 result in this action being dismissed for failure to exhaust, or failure to prosecute or obey a court 2 order pursuant to Fed. R. Civ. P. 41(a)(2).

The deadline has passed, and Petitioner has not 3 informed the Court how he wishes to proceed, or communicated with the Court at all. The sole 4 || claim in this federal habeas petition is unexhausted. ECF No. 21. The Court is therefore barred 5 from considering this claim, and must dismiss this petition. See

(b)(1)(A)-(B) 6 (district court may not grant habeas writ unless state court remedies are exhausted); Rhines v. 7 Weber, 544 US. 269, 273 (2005) (federal district court must dismiss federal habeas petition 8 containing any claim as to which state remedies are unexhausted). Pursuant to 28 U.S.C. 9 § 2254(b)(1) and Fed. R. Civ. P. 41(b), the Court DISMISSES this petition for failure to exhaust 10 state court remedies. 11 The federal rules governing habeas cases brought by state prisoners require a district court q 12 that issues an order denying a habeas petition to either grant or deny therein a certificate of 5 13 appealability. See Rules Governing § 2254 Case, Rule 11(a). A judge shall grant a certificate of S 14 || appealability “only if the applicant has made a substantial showing of the denial of a constitutional 3 15 || right,”

(c)(2), and the certificate must indicate which issues satisfy this standard. a 16

§ 2253(c)(3). “Where a district court has rejected the constitutional claims on the merits, the 3 17 showing required to satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that 18 || reasonable jurists would find the district court’s assessment of the constitutional claims debatable 19 or wrong.” Slack v. McDaniel,

(2000). Here, Petitioner has not made such a 20 showing, and, accordingly, a certificate of appealability will be denied. 21 CONCLUSION 22 For the reasons set forth above, the Court DISMISSES the petition for a writ of habeas 23 corpus, and DENIES a certificate of appealability. Judgment is entered in favor of Respondent 24 and against Petitioner. The Clerk shall close the case. 25 IT IS SO ORDERED. 26 Dated: March 31, 2025 .

27 JON S. TIGAR 28 ited States District Judge