Case 2:22-cv-02762-SSS-AS Document 36 Filed 02/08/23 Page 1 of 4 Page ID #:450

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6 7 8 9 UNITED STATES DISTRICT COURT 10

FOR THE CENTRAL DISTRICT OF CALIFORNIA

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12 LAURACK D. BRAY, Case No. CV 22-2762-SSS (AS) 13 Petitioner, 14 v. ORDER ACCEPTING FINDINGS, 15 STATE OF CALIFORNIA, et. al., CONCLUSIONS AND 16 Respondent. RECOMMENDATIONS OF 17

UNITED STATES MAGISTRATE

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JUDGE

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21 22 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of 23 the records herein and the attached Report and Recommendation of United 24 States Magistrate Judge. 25 Petitioner, a misdemeanant convicted in California state court, filed the 26 instant habeas petition (the “Petition”) pursuant to 28 U.S.C. § 2254. [Dkt. 1 at 27 6, 8-9, 11]. Respondents filed a motion to dismiss, arguing in part that 28 Petitioner’s petition should be dismissed for failure to exhaust his claims in state -1- Case 2:22-cv-02762-SSS-AS Document 36 Filed 02/08/23 Page 2 of 4 Page ID #:451

1 court. [Dkt. 12]. In her Report and Recommendation, the Magistrate 2 recommended granting Respondent’s motion to dismiss. [Dkt. 30]. Petitioner 3 now objects to the Magistrate’s Report and Recommendation on both 4 procedural and substantive grounds. 5 As an initial matter, the Court rejects Petitioner’s procedural arguments 6 concerning (1) Respondent’s failure to comply with Local Rule 7-4 [Dkt. 34 at 7 2, 3] and (2) Petitioner’s assertion that the Magistrate improperly “suggested 8 and taught litigation strategy to Respondent’s counsel” [Dkt. 34 at 3, 4] for the 9 reasons already provided in the Report and Recommendation. [See Dkt. 33 at 5, 10 6]. 11 Next, Petitioner contends that the Magistrate erred in concluding that 12 some or all of the claims raised in his petition had not been exhausted. Under 13 28 U.S.C. § 2554(b)(1)(A), a habeas petitioner must exhaust his state court 14 remedies before a federal court may consider granting habeas corpus relief. 15 O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). In order to satisfy this 16 exhaustion requirement, a habeas petitioner must “fairly present” each of his 17 federal claims to the highest state court with jurisdiction to consider them. 18 Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam). He may make this 19 presentation either by direct appeal or state habeas petition. 20 A misdemeanant seeking to exhaust his claims via direct review must first 21 appeal his Superior Court conviction to the corresponding appellate division. If 22 the appellate division affirms, the misdemeanant must then request that his case 23 be certified for transfer to the California Court of Appeal. If the appellate 24 division grants certification but the Court of Appeal denies the transfer, the 25 misdemeanant’s claims are deemed exhausted. McGonagle v. Meyer, 802 F.3d 26 1093, 1096 (9th Cir. 2015) (en banc). If the appellate division denies 27 certification, the misdemeanant must instead petition the Court of Appeal 28 -2- Case 2:22-cv-02762-SSS-AS Document 36 Filed 02/08/23 Page 3 of 4 Page ID #:452

1 directly. His claims are exhausted once the Court of Appeal denies his petition. 2 Id. 3 Here, after Petitioner’s misdemeanor conviction in Los Angeles County 4 Superior Court, he appealed to the proper appellate division. But once the 5 appellate division affirmed his conviction, Petitioner neither requested 6 certification of his appeal nor filed a direct petition. Petitioner therefore failed 7 to pursue direct review to the extent required for exhaustion. See Nilsen v. Lake 8 Cnty. Superior Ct., App. Dep’t, No. 93-15760, 2020 WL 4701094 at *2 (N.D. 9 Cal. Aug. 13, 2020). 10 Alternatively, to exhaust his claims via state court habeas review, a 11 petitioner must present each in a context which allows the court to reach the 12 merits. Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Before filing the 13 instant Petition, Petitioner filed two habeas petitions with the California 14 Supreme Court. The first was rejected as untimely and so does not constitute a 15 decision on the merits sufficient to exhaust. See Davis v. Adams, No. 93-15760, 16 2010 WL 1408290 at *2 (C.D. Cal. Mar. 3, 2010). Petitioner’s second habeas 17 petition was accepted for filing but addressed only a subset of the federal 18 constitutional issues Petitioner now raises before this Court. As such, 19 Petitioner’s entire Petition is subject to dismissal as “mixed” (containing both 20 exhausted and unexhausted claims). See Rose v. Lundy, 455 U.S. 509, 522 21 (1982). 22 In light of the de novo evaluation set forth above, the Court concurs with 23 and accepts the findings and conclusions of the Magistrate Judge. 24 IT IS ORDERED that Judgment be entered denying the Petition and 25 dismissing this action without prejudice. 26 /// 27 /// 28 /// -3- Case #:22-cv-02762-SSS-AS Document 36 Filed 02/08/23 Page 4of4 Page ID #:453

1 IT IS FURTHER ORDERED that the Clerk serve copies of this Order, 2 || the Magistrate Judge’s Report and Recommendation and the Judgment herein on 3] counsel for Petitioner and counsel for Respondent. 6 || Dated: February 8, 2023 7 SUNSHINE S. KES United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-