Opinion
No. C 03-2280 MMC (PR), (Docket Nos. 11, 13 14)
December 3, 2003
ORDER OF DISMISSAL
Petitioner is a California prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that his right to represent himself under the Sixth Amendment was violated when the trial court appointed an attorney to represent him. The Court found this claim, when liberally construed, to state a cognizable basis for habeas relief, see Faretta v. California, 422 U.S. 806, 832 (1975), and ordered respondent to show cause why the petition should not be granted. Respondent has filed a motion to dismiss the petition because petitioner's claim has not been exhausted, as required by 28 U.S.C. § 2254(b),(c). Petitioner has filed an opposition.
BACKGROUND
In 2000, petitioner was convicted in San Mateo County Superior Court and sentenced to twenty-six years to life in state prison. The California Court of Appeal affirmed, and the Supreme Court of California denied review. Petitioner's habeas petitions in the state courts were unsuccessful.
DISCUSSION
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings the length of their confinement are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, 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); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); McNeeley v. Araye, 842 F.2d 230, 231 (9th Cir. 1988). A federal habeas petition that contains an unexhausted claim must be dismissed. See Rose, 455 U.S. at 510.
In his petition for direct review to the Supreme Court of California, petitioner raised two claims: (1) that there was insufficient evidence to support his conviction and (2) that he should have been found insane at the time the crimes were committed. Respt. Exh. D. The petition for review did not include the Faretta claim raised here, and, as a result, did not serve to exhaust the claim.
In March 2003, petitioner filed two petitions for a writ of habeas corpus in the Supreme Court of California, both of which included a claim that petitioner's right to self-representation under Faretta was violated. Respt. Exhs. F, G. On October 15, 2003, the Supreme Court denied both habeas petitions in a summary opinion with a citation toIn re Swain, 34 Cal.3d 304 (1949) and People v. Duvall, 9 Cal.4th 464, 474 (1995). Id. Although the claim raised in those petitions was the same as the claim raised here, those petitions do not satisfy the exhaustion requirement of 28 U.S.C. § 2254(b),(c). Swain and Duvall set out California's procedural rule that vague and conclusory allegations are insufficient to warrant habeas relief, and that a petitioner must "allege with particularity the facts upon which he would have a final judgment overturned." Swain, 34 Cal.2d at 304; see Duvall, 9 Cal.4th at 474. A California court's denial of a claim on Swain grounds leaves state remedies unexhausted within the meaning of 28 U.S.C. § 2254(b),(c), provided the federal court determines that the claim can be stated with greater particularity in a renewed state habeas petition. Kim v. Villalobos, 799 F.3d 1317, 1319-20 (9th Cir. 1986). Here, in his habeas petitions to the Supreme Court of California, petitioner summarily asserted Faretta error without any explanation as to how the error occurred in his case, without providing any specifics as to the circumstances of his Faretta motion or its denial, and without any citation to the state record. Respt.'s Exhs. F, G. Petitioner's state habeas petitions do not satisfy the exhaustion requirement because they were denied pursuant to theSwain rule, and the Faretta claim raised therein can be asserted with greater particularity in a renewed petition to the Supreme Court of California. Accordingly, the sole claim in the instant federal petition has not been exhausted.
On November 17, 2003, in a "request for an extension of time" filed in this court, petitioner states that on November 7, 2003, he filed a further habeas petition that raises the Faretta claim and is now pending in the Supreme Court of California. The exhaustion requirement is not satisfied if there is a pending post-conviction proceeding in state court; a would-be federal habeas petitioner must await the outcome of his state collateral challenge before his state remedies are exhausted. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). Petitioner nevertheless requests that, instead of dismissing the instant petition for failure to exhaust, this Court grant "an extension of time" until the Supreme Court of California "denies" the petition now pending before it. There are several problems with this request. First, because petitioner does not attach a copy of his recently filed petition, this Court is unable to discern whether it states petitioner's Faretta claim with any greater particularity than his previous unsuccessful petitions in the Supreme Court. Second, petitioner's assumption that the Supreme Court will deny his pending habeas petition is merely speculative; the petition may be granted, and if so, the instant federal petition will become moot. See id. Most importantly, this Court cannot stay the instant petition pending resolution of petitioner's pending state habeas petition because a federal court may only stay an exhausted petition. See Ford v. Hubbard, 330 F.3d 1086, 1097-1102 (9th Cir. 2003) (permitting stay of federal petition only after unexhausted claims deleted from mixed habeas petition); James v. Pliler, 269 F.3d 1124, 1125-26 (9th Cir. 2001) (requiring deletion of unexhausted claims from mixed petition); Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir. 1993) (authorizing stay of exhausted habeas petition). Here, unlike a mixed petition, there is only one claim in the petition, and that claim is unexhausted. Accordingly, petitioner's request for "an extension of time" until after his pending state habeas petition is decided is denied.
CONCLUSION
For the reasons stated above, respondent's motion to dismiss is GRANTED, and the petition for a writ of habeas corpus is DISMISSED without prejudice to petitioner's filing a renewed petition containing only exhausted claims. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (providing that a dismissal solely for failure to exhaust is not a bar to petitioner's returning to federal court after exhausting available state remedies).Petitioner's motions for an extension of time and for reconsideration of the denial of default judgment are DENIED.
This order terminates Docket Nos. 11, 13 and 14, and any other pending motions.
The clerk shall close the file.
IT IS SO ORDERED.