THELTON E. HENDERSON United States District Judge

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (Doc. #8)

Petitioner Shannon Riley, a state prisoner incarcerated at Salinas Valley State Prison (SVSP) in Soledad, California, has filed a pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 alleging that a document in his prison file falsely identifies him as a sex offender and that this could be used as a negative factor in determining unsuitability when he is being considered for parole. Respondent has filed a motion to dismiss. Petitioner has filed an opposition and Respondent has filed a reply. For the reasons stated below, the Court grants the motion to dismiss.

I

Respondent argues that the petition must be dismissed because it is unexhausted, it is procedurally defaulted and it fails to state a cognizable federal habeas claim for relief.

A

Prisoners in state custody who wish to challenge in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). If available state remedies have not been exhausted as to all claims, the district court must dismiss the petition. Id. at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). A dismissal solely for failure to exhaust is not a bar to returning to federal court after exhausting available state remedies. Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).

The exhaustion-of-state-remedies doctrine reflects a policy of federal-state comity to give the state "the initial 'opportunity to pass upon and correct alleged violations of its prisoners' federal rights.'" Picard v. Connor, 404 U.S. 270, 275 (1971) (citations omitted). The exhaustion requirement is satisfied only if the federal claim (1) has been "fairly presented" to the state courts, id.; Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2004); or (2) no state remedy remains available, see Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). However, a claim is not fairly presented to the state's highest court if it is raised in a procedural context which makes it unlikely that it will be considered on the merits. Castille v. Peoples, 489 U.S. 346, 351 (1989); Casey v. Moore, 386 F.3d 896, 917 (9th Cir. 2004); Kibler v. Walters, 220 F. 3d 1151, 1153 (9th Cir. 2000).

Even though non-exhaustion is an affirmative defense, the petitioner bears the burden of proof that state judicial remedies were properly exhausted. Parker v. Kelchner, 429 F.3d 58, 62 (3d Cir. 2005); see Darr v. Burford, 339 U.S. 200, 218-19 (1950) ("petitioner has the burden . . . of showing that other available remedies have been exhausted"), overruled on other grounds, Fay v. Noia, 372 U.S. 391 (1963).

When the petitioner challenges a prison grievance, the prison's internal administrative remedies must be exhausted before the petitioner may seek judicial relief. In re Dexter, 25 Cal. 3d 921, 925 (1979).

B

On May 14, 2012, the Monterey County Superior Court denied Petitioner's habeas petition on the ground that Petitioner had not "exhausted administrative remedies through the Director's Level of Appeal, which he must do before seeking judicial review of his claims." Pl.'s Opp, Ex. D, In re Shannon Riley, On Habeas Corpus, No. HC 7675, at 1, Monterey County Sup. Ct. May 14, 2012. The Superior Court summarized the facts of Petitioner's claim as follows:

According to Petitioner, when he received a copy of his record from his recent program review with the Unit Classification Committee (UCC), he noticed an entry which reflected that he
had a prior arrest history as a sex offender disrupting a school. . . . He alleges that this entry is false. . . . He alleges that he talked to his counselor who told him to file an administrative appeal. He states that he attempted to file an appeal but it was cancelled as being untimely.

In denying the petition, the Superior Court explained that requiring exhaustion of administrative remedies "promotes judicial efficiency as it allows prison officials to investigate facts and correct any problems before there is need for a court to get involved." Id. The court noted that Petitioner's appeal was canceled as untimely and "he failed to appeal the cancellation, which if processed, would have allowed him to exhaust his administrative remedies." Id. at 1-2. The court also ruled that Petitioner failed to state sufficient facts to waive the exhaustion requirement. Id. at 2.

The Superior Court also addressed the merits of Petitioner's claim, noting that Petitioner merely contended that the allegation that he was a sex offender was false, but presented no documentary evidence to support his position. Id.

Petitioner filed a petition with the California Court of Appeal, which was summarily denied. Opp'n., Ex. H. Petitioner then filed a petition in the California Supreme Court which was summarily denied with a citation to In re Dexter, 25 Cal. 3d 921, 925-26 (1979). Opp'n., Ex. J. A citation to Dexter stands for the proposition that a state habeas petitioner "will not be afforded judicial relief unless he has exhausted state administrative remedies." Id. at 925.

Based on the above authority, the petition was not fairly presented to the California Supreme Court because Petitioner submitted an unexhausted petition and, thus, that court was not able to rule on its merits. Therefore, the petition is unexhausted. See Castille, 489 U.S. at 351 (if procedural context of petition does not allow highest state court to rule on merits, petition is unexhausted).

In his opposition, Petitioner concedes that the petition is unexhausted, Opp'n at 7 at ¶ 33, but claims that exhaustion should be excused as an "inadvertent error" because "he was unaware of the fact that he could appeal a cancellation of an administrative appeal" and it was an extremely stressful time for him due to racial tension in the prison. Opp'n at 5.

A federal habeas court may consider an unexhausted claim under 28 U.S.C. § 2254 (b)(1)(B)(i)-(ii) if:

there is an absence of available State corrective process; or circumstances exist that render such process ineffective to protect the rights of the applicant.

Petitioner's own documents show that he was informed not only that he could appeal a cancellation decision but that this was the only path for eventually resubmitting the original appeal. See Pet'n., Ex. A. Specifically, at the bottom of each of the four forms accompanying the return of his appeal, the following notice appears:

Be advised that you cannot appeal a rejected appeal, but should take the corrective action necessary and resubmit the appeal within the timeframes specified . . . Pursuant to CCR 3084.6(e), once an appeal has been cancelled, that appeal may not be resubmitted. However, a separate appeal can be filed on the cancellation decision. The original appeal may only be resubmitted if the appeal on the cancellation is granted.

Furthermore, it appears that Petitioner knew that he could appeal the cancellation, but chose not to do so because he thought the appeal would be futile. See Pet'n. Mem. of P. and A at 4, ¶ 5 (explaining that appeal would be futile because appeal coordinator "has a history of arbitrarily refusing to process Petitioner's appeals"). These reasons are insufficient to show that the state's appeal process was ineffective.

Petitioner also argues that the California Supreme Court prevented him from exhausting state court remedies because it denied his motion for a stay. This claim is based on the following facts.

After the California Court of Appeal denied his habeas petition, Petitioner filed an untimely petition for review and a stay motion in the California Supreme Court. Opp. Ex. H at 2-3. In a letter dated November 2, 2012, the Court informed Petitioner that it lacked jurisdiction over his petition for review because he had filed it after the one-month deadline. However, in a letter dated November 21, 2012, the Court informed Petitioner that, although it lost jurisdiction to act on a petition for review of the Court of Appeal's decision, he could file a petition for a writ of habeas corpus, and enclosed the correct form. Petitioner then filed a petition in the California Supreme Court, which was summarily denied on February 27, 2013 with a citation to In re Dexter.

Thus, the California Supreme Court read and considered Petitioner's petition for habeas relief. The fact that it did not grant his motion for a stay regarding his petition for review of the Court of Appeal's order did not prevent Petitioner from presenting his petition to the state's highest court.

Petitioner fails to demonstrate that there was an absence of an available state corrective process or that circumstances rendered this process ineffective to protect his rights. The petition is unexhausted and is dismissed on this ground.

II

A

As noted above, the California Supreme Court denied Petitioner's petition with a citation to In re Dexter, 25 Cal. 3d 921 (1979). Dexter stands for the proposition that a state habeas petitioner "will not be afforded judicial relief unless he has exhausted state administrative remedies." Id. at 925. Respondent contends that the procedural default invoked by the California Supreme Court bars this petition.

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). That is, Petitioner's claim is procedurally defaulted only if the Supreme Court of California's bar was an independent and adequate state procedural ground and Petitioner cannot show that an exception to the procedural bar applies.

Petitioner does not contend that the bar was not independent, and indeed it is clear that it was - the only reason given for rejecting the state petition was failure to exhaust administrative remedies. The ruling was in no way on the merits, or intertwined with a decision on the merits. As to adequacy, the state has pleaded the existence of the bar, thereby shifting the burden to Petitioner to come forward with specific factual allegations and citations to authority to demonstrate that the rule is not consistently enforced. See Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). This he has not done. Instead, Petitioner argues that he has shown cause and prejudice.

B

The cause standard requires the petitioner to show that "some objective factor external to the defense" prevented presentation to the state court. McCleskey v. Zant, 499 U.S. 467, 493 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). In other words, to show cause, a petitioner must show that something external to himself, something that cannot be attributed to him, impeded his efforts to comply with the state's procedural rule. Maples v. Thomas, 132 S. Ct. 912, 922 (2012).

To show cause, Petitioner repeats the arguments he made above in regard to the issue of exhaustion. That is, he states that (1) he was unaware of the fact that he could appeal the cancellation of his administrative appeal, Opp. at 5, ¶ 17, and (2) he was under a great deal of stress due to the high level of racial tension at his prison, id. at ¶ 18. As discussed above, Petitioner was notified that he could appeal the cancellation of his appeal. Furthermore, Petitioner's allegations of racial tension and his emotional distress, without more, are not sufficient to constitute an external factor that prevented him from exhausting administrative remedies.

Petitioner also argues that a fundamental miscarriage of justice would occur if his claim is not adjudicated because he "has provided the exact document that was used to falsely label him a "'sex offender.'" However, to show a fundamental miscarriage of justice, a petitioner must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986). Because Petitioner does not challenge his underlying conviction in this petition, he cannot meet this exception to the procedural bar rule.

Respondent has established that Petitioner's claim was procedurally defaulted. Therefore, the motion to dismiss is granted on the ground of procedural default as well as on the failure to exhaust administrative remedies. Dismissal is with prejudice. Because the motion to dismiss is granted on Respondent's first two grounds for relief, the Court need not address Respondent's third ground for dismissal.

III

Petitioner has not shown "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right [or] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a certificate of appealability is DENIED.

CONCLUSION

Based on the foregoing, the Court orders as follows:

1. Respondent's motion to dismiss is GRANTED. Dismissal is with prejudice.

2. A certificate of appealability is denied

3. This order terminates docket number 8.

4. The Clerk of the Court shall enter a separate judgment and close the file.

IT IS SO ORDERED. DATED 03/10/2014

/s/_________

THELTON E. HENDERSON

United States District Judge
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