Lopez v. Martin ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALEJANDRO JAVIER LOPEZ, Case No. 20-cv-04430-JST 8 Petitioner, ORDER OF DISMISSAL v. 9 10 BRIAN MARTIN, et al., Respondent. 11 12 13 INTRODUCTION 14 Petitioner has filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. 15 § 2254. His petition (ECF No. 1) is now before the Court for review pursuant to 28 U.S.C. § 2243 16 and Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. 17 Petitioner’s request for leave to proceed in forma pauperis is granted. ECF No 2. 18 BACKGROUND 19 According to the petition, on May 11, 2020, petitioner’s probation was revoked for a 20 violation of Cal. Health & Safety Code § 11379(a), pursuant to a plea of nolo contendere. ECF 21 No. 1 at 1-2, 5. He was sentenced to an additional year for having a prior prison term, as well to 22 an additional eight months to run consecutive to his sentence for violating Cal. Penal Code 23 § 1320(a). ECF No. 1 at 5. Petitioner does not specify the overall length of his sentence. 24 Petitioner did not appeal his sentence or conviction. ECF No. 1 at 2-3. 25 DISCUSSION 26 A. Standard of Review 27 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 1 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 2 Hodges, 423 U.S. 19, 21 (1975). A district court shall “award the writ or issue an order directing 3 the respondent to show cause why the writ should not be granted, unless it appears from the 4 application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 5 B. Petitioner’s Claims 6 Liberally construed, the petition argues that petitioner is entitled to federal habeas relief 7 because (1) the trial court improperly added a one year term to his probation revocation term for 8 his prior prison term; (2) his sentence for Cal. Penal Code § 1320(a) should run concurrent, and 9 not consecutive, to his sentence; (3) he would like his sentence modified under 18 U.S.C. § 3582 10 to home detention because of COVID-19; and (5) his sentence violates the Eighth Amendment 11 because the maximum sentence for a violation of Cal. Health & Safety Code § 11379(a) is three 12 years. ECF No. 1 at 5-6. 13 C. Failure to Exhaust 14 Prisoners in state custody who wish to challenge collaterally in federal habeas corpus 15 proceedings either the fact or length of their confinement are first required to exhaust state judicial 16 remedies, either on direct appeal or through collateral proceedings, by presenting the highest state 17 court available with a fair opportunity to rule on the merits of each and every claim they seek to 18 raise in federal court. See 28 U.S.C. § 2254(b)-(c). Petitioner has not done so. He has not 19 presented the Supreme Court of California with an opportunity to consider and rule on his claims. 20 See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (state’s highest court must be given 21 opportunity to rule on claims even if review is discretionary); Larche v. Simons, 53 F.3d 1068, 22 1071-72 (9th Cir. 1995) (Supreme Court of California must be given at least one opportunity to 23 review state prisoners’ federal claims). The petition for a writ of habeas corpus therefore is 24 DISMISSED without prejudice to filing a new petition after state judicial remedies are exhausted. 25 / / / 26 / / / 27 / / / 1 CONCLUSION 2 For the foregoing reasons, the Court DISMISSES this petition for a writ of habeas corpus 3 || without prejudice to filing a new petition after state judicial remedies are exhausted. 4 IT IS SO ORDERED. 5 Dated: August 10, 2020 6 JON S. TIGA 7 nited States District Judge 8 9 10 11 a 12 © 15 16 it 4 18 19 20 21 22 23 24 25 26 27 28