Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRANDON LYNELL PRICE, Case No.: 3:25-cv-3228-JLS-KSC 12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE AND DENYING CERTIFICATE OF 14 JAMES HILL, ATTORNEY GENERAL, APPEALABILITY 15 Respondents. 16 17 On November 5, 2025, Petitioner Brandon Lynell Price (“Petitioner”), an inmate 18 proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. 19 See ECF No. 1. On November 25, 2025, the Court dismissed the case without prejudice 20 because Petitioner failed to satisfy the filing fee requirement. ECF No. 2. The Court 21 notified Petitioner that to have his case reopened, he must either pay the $5.00 filing fee or 22 to move to proceed in forma pauperis by January 19, 2026. Id. On December 5, 2025, 23 Petitioner paid the filing fee, and the case has been reopened.1 See ECF No. 3. As 24 discussed below, however, the Petition must be dismissed without prejudice. 25 / / / 26 27 1 It appears the filing fee was received by the Clerk of Court on December 5, 2025, but due to an apparent 28 clerical error, the notice of payment was not entered onto the docket until February 10, 2026. See ECF 1 FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES 2 In his Petition, Petitioner raises several claims arising from his 2006 convictions in 3 San Diego Superior Court Case Nos. SCD170638 and SCD160800.2 ECF No. 1 at 1. A 4 state prisoner must exhaust his state court remedies before a federal court may consider 5 granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 6 838, 842 (1999). 7 To satisfy the exhaustion requirement, a petitioner must “fairly present” his federal 8 claim to the state courts, i.e., give them a fair opportunity to consider and correct violations 9 of the prisoner’s federal rights. See Duncan v. Henry, 513 U.S. 364, 365 (1995); Peterson 10 v. Lampert, 319 F.3d 1153, 1155–56 (9th Cir. 2003) (en banc). A state prisoner seeking 11 relief with respect to a California conviction is required to fairly present his federal claims 12 to the California Supreme Court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (noting a 13 state prisoner must fairly present his claim(s) to a state supreme court having the power of 14 discretionary review); Keating v. Hood, 133 F.3d 1240, 1242 (9th Cir. 1998). 15 Here, Petitioner states he has raised all the claims presented in his federal petition 16 in a petition for habeas corpus filed with the California Supreme Court. ECF No. 1 at 6– 17 11. However, Petitioner also concedes his state petition is still pending before the state 18 19 20 2 The Court notes that Petitioner has previously pursued federal habeas relief as to those convictions in 21 this Court. See Price v. Uribe, No. 10-cv-1357-H-WVG. The Court denied habeas relief in that case on November 3, 2011. See id., ECF No. 41. A district court is generally barred from considering a successive 22 petition unless the Petitioner first obtains “authorization from the court of appeals before filing his new petition with the district court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (citing 28 U.S.C. § 23 2244(b)(3)). But here, Petitioner states he was resentenced and a new judgment entered in his state 24 criminal cases on July 7, 2021, and the abstract of judgment was again amended on June 7, 2022. See ECF No. 1 at 20–21. Petitioner’s resentencing and amended judgment constitutes an intervening judgment 25 and as such the instant Petition is not “successive.” See Smith v. Williams, 871 F.3d 684, 687 (9th Cir. 2017) (noting that “when a defendant is resentenced, he has received a new judgment”); Gonzalez v. 26 Sherman, 873 F.3d 763, 768 (9th Cir. 2017) (stating that “an amended judgment constitutes a new, intervening judgment that renders a subsequent habeas petition not second or successive even if the 27 petition challenges only undisturbed portions of the original judgment”) (citing Wentzell v. Neven, 674 28 F.3d 1124, 1126–28 (9th Cir. 2012)). 1 || high court.* /d. The exhaustion requirement is not satisfied if there is a pending proceeding 2 ||in state court that could result in the relief the federal petitioner seeks, thereby mooting the 3 federal question. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). Therefore, 4 || Petitioner has not completed exhaustion of his state judicial remedies. 5 CONCLUSION 6 Because Petitioner has a petition currently pending in the California Supreme Court, 7 || the instant petition for a writ of habeas corpus is DISMISSED without prejudice to refiling 8 all state court post-conviction challenges to Petitioner’s convictions have been 9 completed. See 28 U.S.C. § 2254(b)(c); Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding 10 || every claim raised in federal habeas petition must be exhausted). 1] Furthermore, the Court DENIES a certificate of appealability because reasonable 12 ||jurists would not find this Court’s dismissal debatable. See 28 U.S.C.A. § 2253(c)(2); 13 || Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (stating a prisoner seeking a certificate of 14 || appealability must demonstrate jurists of reason could disagree with the district court’s 15 ||resolution of his constitutional claims or that jurists could conclude the issues presented 16 adequate to deserve encouragement to proceed further). 17 The Clerk of Court SHALL enter judgment and close the file. 18 IT IS SO ORDERED. 19 || Dated: February 13, 2026 20 wo. 1 on. Janis L. Sammartino United States District Judge 22 23 24 25 |} —— 26 A review the California Supreme Court docket shows Petitioner filed a petition for habeas relief in that 7 court on October 10, 2025 in Case No. $293346, which is still pending. See California Appellate Courts Case Information, —https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?doc_id= 2g ||3142744&request_token=NilwLSEnPkw9WyBNSCM9SEJIQDg0UDxTKiluSz5SUCAgCg%3D%3D &start=1&doc_no=S293346&dist=O&search=party&auth=yes (visited Feb. 10, 2026). YQ