United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

No. C 09-1934 RS (PR)

ORDER OF DISMISSAL 

United States District Court

For the Northern District of California

*E-Filed 4/15/10*

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

ANTHONY FORREST,

Petitioner,

v.

R. K. WONG, Warden, 

Respondent. /

No. C 09-1934 RS (PR)

ORDER OF DISMISSAL 

INTRODUCTION

This is a federal habeas corpus action filed by a pro se state prisoner pursuant to 28

U.S.C. § 2254. For the reasons stated herein, respondent’s motion to dismiss the petition for

failure to exhaust state judicial remedies (Docket No. 6) is GRANTED. Accordingly, the

petition is DISMISSED without prejudice to petitioner’s filing of proof that he exhausted his

state judicial remedies. 

DISCUSSION

Prisoners in state custody who wish to challenge collaterally in federal habeas

proceedings either the fact or length of their confinement are first required to exhaust

state judicial remedies, either on direct appeal or through collateral proceedings, by

Case 3:09-cv-01934-RS Document 8 Filed 04/15/10 Page 1 of 4
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

No. C 09-1934 RS (PR)

2 ORDER OF DISMISSAL 

presenting the highest state court available with a fair opportunity to rule on the merits

of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b),

(c); Rose v. Lundy, 455 U.S. 509, 515–16 (1982). The state’s highest court must be given an

opportunity to rule on the claims even if review is discretionary. See O’Sullivan v. Boerckel,

526 U.S. 838, 845 (1999) (petitioner must invoke “one complete round of the State’s

established appellate review process.”). Even though non-exhaustion is an affirmative

defense, the petitioner bears the burden of proof that state judicial remedies were properly

exhausted. Parker v. Kelchner, 429 F.3d 58, 62 (3d Cir. 2005). If available state remedies

have not been exhausted as to all claims, the district court must dismiss the petition. See

Rose, 455 U.S. at 510.

Respondent contends that the instant petition is unexhausted because petitioner never

presented his claims to the California Supreme Court for decision. (Mot. to Dismiss

(“MTD”) at 4.) Petitioner, however, asserts in his petition that he did present his claims to

the state superior and supreme courts, and that the state supreme court granted his petition in

April 2009. (Pet. at 4.) Respondent counters that petitioner has filed no exhibits in support

of his assertion, and that “the California Supreme Court’s official website has no record of

any petitions challenging this judgment filed by petitioner in 2009 or at any other time.” 

(MTD at 2–3.) Petitioner has not opposed respondent’s motion, even though he has had an

opportunity to file opposition since the motion was filed on October 14, 2009. 

Having reviewed the papers and documents submitted by the parties, this Court

concludes that petitioner has not established that he fairly presented his claims to the

California Supreme Court for decision. Specifically, petitioner has not filed an opposition

to refute respondent’s argument or provided any evidence to the contrary. Therefore,

petitioner has failed to meet his burden of proof that state judicial remedies were

properly exhausted with respect to these claims. See Parker, 429 F.3d at 62. Accordingly,

respondent’s motion to dismiss the claims as unexhausted is GRANTED. The petition is

DISMISSED. 

Case 3:09-cv-01934-RS Document 8 Filed 04/15/10 Page 2 of 4
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

No. C 09-1934 RS (PR)

3 ORDER OF DISMISSAL 

CONCLUSION

For the reasons stated above, respondent’s motion to dismiss is GRANTED. 

Accordingly, the petition is DISMISSED without prejudice to petitioner’s filing with the

Court an amended petition that includes proof that he presented his claims to, and that they

were ruled on by, the California Supreme Court. 

A certificate of appealability will not issue. Petitioner has not shown “that jurists of

reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

This order terminates Docket No. 6.

The Clerk shall terminate the pending motion, enter judgment in favor of respondent,

and close the file.

 IT IS SO ORDERED.

DATED: April 14, 2010 

 RICHARD SEEBORG

United States District Judge

Case 3:09-cv-01934-RS Document 8 Filed 04/15/10 Page 3 of 4
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

No. C 09-1934 RS (PR)

4 ORDER OF DISMISSAL 

THIS IS TO CERTIFY THAT A HARD COPY OF THIS ORDER WAS MAILED TO:

Anthony Forrest 

E-23373 

San Quentin State Prison 

San Quentin, Ca 94974 

DATED: 04/14/2010 

 

 

s/ Chambers Staff 

Chambers of Judge Richard Seeborg

* Counsel are responsible for distributing copies of this document to any co-counsel who

have not registered with the Court’s electronic filing system.

Case 3:09-cv-01934-RS Document 8 Filed 04/15/10 Page 4 of 4