Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VINCENT LEGREND WALTERS, Case No.: 26-cv-00428-AJB-VET 12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE 14 JEFF MACOMBER, Secretary, et al., 15 Respondents. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ habeas 18 corpus pursuant to 28 U.S.C.A. § 2254 and paid the filing fee. (Doc. Nos. 1; 6.) Petitioner 19 challenges his resentencing in San Diego County Superior Court Case No. SCD260844. 20 (See Doc. No. 1-2 at 1.) As discussed below, the case must be dismissed because Petitioner 21 has failed to allege exhaustion of state judicial remedies. 22 DISCUSSION 23 Habeas petitioners who wish to challenge either their state court conviction or the 24 length of their confinement in state prison, must first exhaust state judicial remedies. 28 25 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133–34 (1987). To exhaust state 26 judicial remedies, a California state prisoner must present the California Supreme Court 27 with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas 28 petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133–34. Moreover, to properly 1 exhaust state court remedies a petitioner must allege, in state court, how one or more of his 2 or her federal rights have been violated. The Supreme Court has stated: “If state courts are 3 to be given the opportunity to correct alleged violations of prisoners’ federal rights, they 4 must surely be alerted to the fact that the prisoners are asserting claims under the United 5 States Constitution.” Duncan v. Henry, 513 U.S. 364, 365–66 (1995). For example, “[i]f a 6 habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him 7 [or her] the due process of law guaranteed by the Fourteenth Amendment, he [or she] must 8 say so, not only in federal court, but in state court.” Id. at 366 (emphasis added). 9 Nowhere does Petitioner allege that the claims raised in his federal petition have 10 been presented to the California Supreme Court. In fact, he specifically indicates he did 11 not seek such review of the four claims raised. (See Doc. No. 1 at 6–9.) Because it is clear 12 from the face of the petition that Petitioner has not raised any of his claims in the California 13 Supreme Court, it is subject to dismissal. See Rose v. Lundy, 455 U.S. 509, 518–22 (1982) 14 (stating a federal court will not entertain a habeas corpus petition unless the petitioner has 15 exhausted the available state judicial remedies on every ground presented in the petition). 16 Further, the Court cautions Petitioner a one-year period of limitation applies to 17 petitions for writ of habeas corpus under 28 U.S.C. § 2254. The limitation period runs from 18 the latest of: 19 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 20 21 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is 22 removed, if the applicant was prevented from filing by such State action; 23 (C) the date on which the constitutional right asserted was initially 24 recognized by the Supreme Court, if the right has been newly recognized by 25 the Supreme Court and made retroactively applicable to cases on collateral review; or 26 27 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 1 U.S.C. § 2244(d)(1)(A}(D).! 2 Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal 3 a habeas petition “[i]f it plainly appears from the face of the petition and any exhibits 4 || annexed to it that the petitioner is not entitled to relief in the district court .. .” Rule 4, 28 5 || U.S.C. foll. § 2254. Here, it appears plain from the Petition that Petitioner is not presently 6 ||entitled to federal habeas relief because he has not alleged exhaustion of state court 7 || remedies. 8 CONCLUSION 9 For the foregoing reasons, the Court DISMISSES the Petition without prejudice to 10 |/refiling as new case after Petitioner has exhausted his claims in state court. Furthermore, 11 Court DENIES a certificate of appealability because reasonable jurists would not find 12 Court’s dismissal debatable. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 13 322, 327 (2003) (stating a prisoner seeking a certificate of appealability must 14 ||demonstrate jurists of reason could disagree with the district court’s resolution of his 15 || constitutional claims or that jurists could conclude the issues presented are adequate to 16 deserve encouragement to proceed further). The Clerk shall close the file. 17 IT IS SO ORDERED. 18 || Dated: February 25, 2026 | | ZS rz : LZ 19 Hon, Anthony Battaglia 20 United States District Judge 21 22 23 24 || 25 The statute of limitations does not run while a properly filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). But see Artuz 26 Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for placement into the record] are in compliance with the 27 applicable laws and rules governing filings.”). However, absent some other basis for tolling, the statute of 22 000). does run while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82