1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL JOHN DELMONICO, Case No. 21-cv-02009-HSG

8 Petitioner, ORDER DENYING WITHOUT

PREJUDICE REQUEST TO LIFT

9 v. STAY

10 ROB BONTA, Re: Dkt. No. 29 11 Respondent.

12 13 Petitioner has filed a pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. 14 § 2254 challenging a 2018 misdemeanor conviction from Palo Alto Superior Court. On March 21, 15 2022, pursuant to Petitioner’s request, the Court stayed this action to allow Petitioner to exhaust 16 state court remedies. Dkt. No. 26. Now pending before the Court is Petitioner’s request to lift the 17 stay. Dkt. No. 29. For the reasons set forth below, the request is DENIED without prejudice. 18 DISCUSSION 19 Petitioner has requested to lift the stay, arguing that he has exhausted his state court 20 remedies. Dkt. No. 29 at 1-3. Petitioner reports that on July 11, 2022, he filed a petition for a writ 21 of habeas corpus in Santa Clara County Superior Court. Dkt. No. 29 at 1. On September 9, 2022, 22 the Superior Court denied the petition because he was not in actual or constructive custody as his 23 jail term was deemed served in September 2018; his probation was terminated by court order on 24 April 20, 2021; his conviction was expunged pursuant to Cal. Penal Code § 1203.4 on July 2, 25 2021; and the requirement to register as a sex offender does not render him “in custody” for 26 purposes of habeas corpus. Dkt. No. 29-1 at 1-2. Petitioner does not report filing habeas petitions 27 in the California appellate courts or in the California Supreme Court. 1 state court remedies either after direct review of his claims is concluded or after the claims have 2 been presented in state collateral proceedings, depending on the nature of the claim. See 3 McMonagle v. Meyer, 802 F.3d 1093, 1099 & n.1 (9th Cir. 2015). Ineffective assistance of 4 counsel claims must be raised and exhausted via state collateral proceedings. McMonagle, 802 5 F.3d at 1099 n.1. To satisfy the exhaustion-of-state-court-remedies requirement in state collateral 6 proceedings, a petitioner must present the highest state court available with a fair opportunity to 7 rule on the merits of the claims he seek to raise in federal court. See 28 U.S.C. § 2254(b), (c); 8 Rose v. Lundy, 455 U.S. 509, 515-16 (1982). Here, Petitioner has only filed a state habeas petition 9 with the Santa Clara Superior Court. Petitioner has not presented his claims in state collateral 10 proceedings to the highest state court available, the California Supreme Court.1 11 The Court DENIES Petitioner’s request to lift the stay and reopen this action. Dkt. No. 29. 12 This denial is without prejudice to Petitioner filing a renewed request to lift the stay and reopen 13 this action after he has exhausted his state court remedies. To assist the Court in determining 14 whether Petitioner has exhausted his state court remedies, Petitioner should attach a copy of the 15 briefing that he submits to the state courts and a copy of the state court’s decision when filing a 16 renewed request to lift the stay and reopen this action. 17 CONCLUSION 18 For the reasons set forth above, the Court DENIES Petitioner’s request to lift the stay and 19 reopen this action without prejudice to Petitioner filing a renewed request to lift the stay and 20 reopen this action after he has exhausted his state court remedies, and attaching the documents 21 specified above. Dkt. No. 29. 22 // 23

24 1 Petitioner reports that he attempted to present his claims to the California Supreme Court by filing a “Petition for Review to Exhaust State Remedies under California Rules of Court, rule 25 8.508,” and that the California Supreme Court refused to accept the petition for filing, stating that the filing was in violation of Cal. R. Ct. 8.500(a). Dkt. No. 27. A petition for review is not a part 26 of state collateral proceedings. A petition for review is a part of the direct review process, allowing petitioners to seek review of decisions issued by the California Court of Appeals. See 27 generally Cal. R. Ct. 8.500. However, petitioners may not file petitions for review for review of 1 This order terminates Dkt. No. 29. 2 IT IS SO ORDERED. 3 || Dated: 3/9/2023 4 .

HAYWOOD S. GILLIAM, JR.

5 United States District Judge 6 7 8 9 10 11 a 12

13 14

15 16

= 17

Z 18

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