Parson

MEMORANDUM **

Richard R. Parson, a California state prisoner under sentence of death, appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 petition, without prejudice, for failure to exhaust state remedies. We have jurisdiction pursuant to 28 U.S.C. § 2253 . We affirm.

In federal district court, Mr. Parson raised two claims: (1) California’s mandatory appeal statute for capital cases violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution because non-capital California appellants and federal appellants are permitted to waive them appeals; and (2) the California Supreme Court’s refusal to allow Mr. Parson to waive his automatic capital appeal violates the United States Constitution’s Eighth Amendment ban on cruel and unusual punishment because Mr. Parson is in constant pain due to physical illness.

Concluding that Mr. Parson had not fairly presented his claims to the State’s highest court because Mr. Parson’s request to dismiss his appeal was sent in a letter which was addressed to a court administrator rather than filed in the California Supreme Court as a motion, the district court dismissed Mr. Parson’s petition…