1 2 3 JS-6 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 Case No. SA CV 21-00225 VBF 13 SALEH ALI, (MRW) 14 Petitioner, ORDER DISMISSING HABEAS 15 vy. ACTION WITHOUT PREJUDICE 16 | ROBERT BURTON, Warden, 17 Respondent. 18 19 The Court dismisses this habeas action without prejudice for failure to exhaust claims in state court proceedings. 28 U.S.C. § 2254(b)(1)(A). kkk 22 1. This is a habeas corpus action involving a state prisoner. 28 Petitioner Ali was convicted of several charges related to the possession of 24 explosive devices. He is currently serving a prison term of over 19 years. 20 (Docket # 1 at 2.) 26 2. On direct appeal, Petitioner challenged the sufficiency of the evidence underlying two of his many count of conviction (counts one and

1 two in the trial court action). The state appellate court affirmed those 2 convictions. The state supreme court denied review. (Docket # 22-14.) 3 Petitioner pursued no other appellate or habeas review in the state court 4 system. (Docket # 21-1 at 2.) 5 3. This federal action followed under 28 U.S.C. § 2254. 6 Petitioner’s pro se petition sought federal review of numerous claims 7 (sufficiency of evidence regarding trial court counts one through four, and a 8 double jeopardy claim). (Docket # 1 at 14.) The first claim in the petition 9 appears to assert the same sufficiency-of-evidence argument from 10 Petitioner’s direct appeal in state court. None of the other claims in the 11 federal action appear to have been presented to the state appellate or 12 supreme court. 13 4. Magistrate Judge Wilner screened the petition as required 14 under the Habeas Rules. (Docket # 4.) The screening order noted that 15 some of Petitioner’s claims appeared to be unexhausted. 16 5. Petitioner submitted several supplemental statements 17 regarding this action. (Docket # 5, 7, 11-15.) Judge Wilner ordered the 18 California Attorney General to respond to the petition and Petitioner’s 19 additional statements. (Docket # 6, 16.) The Attorney General moved to 20 dismiss the action as unexhausted. (Docket # 21.) 21 6. Judge Wilner informed Petitioner that he could oppose the 22 Attorney General’s dismissal motion, or take a number of actions (request a 23 stay, amend petition to dismiss claims, etc.) to rectify the problems with 24 the mixed petition. (Docket # 23.) Petitioner elected to oppose the motion, 25 although his chaotic filings appeared to argue the merits of his claims 26 rather than their procedural problems. (Docket # 24, 25 at 1.) 27 * * * 28 1 7. If it “appears from the application that the applicant or person 2 detained is not entitled” to habeas relief, a court may summarily dismiss a 3 habeas action. 28 U.S.C. § 2243; see also Rule 4 of Rules Governing 4 Section 2254 Cases in United States District Courts (petition may be 5 summarily dismissed if petitioner plainly not entitled to relief); Local Civil 6 Rule 72-3.2 (magistrate judge may submit proposed order for summary 7 dismissal to district judge “if it plainly appears from the face of the petition 8 [ ] that the petitioner is not entitled to relief”). 9 8. Under AEDPA, a petitioner must exhaust all claims as a 10 prerequisite to a federal court’s consideration of a habeas corpus petition. 11 28 U.S.C. § 2254(b)(1)(A); Kyzar v. Ryan, 780 F.3d 940, 946 (9th Cir. 2015). 12 Petitioner must fairly present those claims to the state’s highest court. 13 Rose v. Lundy, 455 U.S. 509, 515 (1982). A claim has not been fairly 14 presented unless the prisoner describes in the state court proceedings both 15 the operative facts and federal legal theory on which his claim is based. 16 Duncan v. Henry, 513 U.S. 364, 370 (1995). 17 9. Federal courts “must dismiss” a habeas petition that contains 18 both exhausted and unexhausted claims. Lundy, 455 U.S. at 510. 19 “[B]efore the district court dismisses a mixed petition, a petitioner must be 20 offered leave to amend the petition to delete any unexhausted claims and 21 to proceed on the exhausted claims.” Butler v. Long, 752 F.3d 1177, 1180 22 (9th Cir. 2014) (quotation omitted). 23 * * * 24 10. The Attorney General convincingly demonstrates that 25 Petitioner’s habeas petition contains unexhausted claims. The petition 26 facially challenges Petitioner’s convictions on counts other than those 27 raised on direct appeal. He also asserts a double jeopardy claim unrelated 28 1 | to the sufficiency-of-evidence issue raised on appeal. (Docket # 1, 22-14.) 2 | Petitioner’s chaotic responsive submissions do not advance any basis for 3 | finding that these additional claims are properly exhausted. 28 U.S.C. 4 | § 2254(b)(1)(A): Kyzar, 780 F.3d at 946; Duncan, 513 U.S. at 370. 5 11. Moreover, Judge Wilner’s order fairly provided Petitioner with 6 | the opportunity to dismiss his unexhausted claims. (Docket # 23.) 7 | Petitioner affirmatively declined to do so. (Docket # 25 at 1.) Dismissal of 8 ]| the action without prejudice is required as a matter of law. Lundy, 9 | 455 U.S. at 510; Butler, 752 F.3d at 1180. 10 11 Therefore, the present action is hereby DISMISSED without 12 | prejudice. 13 IT IS SO ORDERED. 14 15 16 | Dated: August 5, 2021 /s/ Valerie Baker Fairbank

HON. VALERIE BAKER FAIRBANK

18 SENIOR U.S. DISTRICT JUDGE 19 20 | Presented by: 21 22 [ 23 | HON. MICHAEL R. WILNER 24 | UNITED STATES MAGISTRATE JUDGE 25 26