United States District Court

For the Northern District of California

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No. C 09-2477 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

OSCAR PEARSON,

Petitioner,

v.

CONTRA COSTA COUNTY SHERIFF,

et al., 

Respondents. /

No. C 09-2477 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, respondents’ motion to dismiss the petition for

failure to exhaust state judicial remedies (Docket No. 16) 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

Case 3:09-cv-02477-RS Document 20 Filed 04/15/10 Page 1 of 4
United States District Court

For the Northern District of California

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No. C 09-2477 RS (PR)

2 ORDER OF DISMISSAL 

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

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.

Respondents contend that the instant petition is unexhausted because petitioner never

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

(“MTD”) at 3.) In the petition, petitioner does not state that he presented his claims to the

California Supreme Court. (Pet. at 4–5.) Petitioner, in his opposition to the motion,

concedes that he has not exhausted his claims: “petitioner would suggest that because of

state officials intentional [a]ct, any further attempts by him to exhaust state administrative

remedies would be inadequate, without support.” (Opp. to MTD at 1–2.) 

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 concedes that he has not

exhausted his state remedies. 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, respondents’ motion to dismiss the claims as unexhausted is

GRANTED. The petition is DISMISSED. 

Case 3:09-cv-02477-RS Document 20 Filed 04/15/10 Page 2 of 4
United States District Court

For the Northern District of California

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No. C 09-2477 RS (PR)

3 ORDER OF DISMISSAL 

CONCLUSION

For the reasons stated above, respondents’ 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. 16.

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

and close the file.

 IT IS SO ORDERED.

DATED: April 14, 2010 

 RICHARD SEEBORG

United States District Judge

Case 3:09-cv-02477-RS Document 20 Filed 04/15/10 Page 3 of 4
United States District Court

For the Northern District of California

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No. C 09-2477 RS (PR)

4 ORDER OF DISMISSAL 

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

Oscar Maurice Pearson 

T-91151 

San Quentin State Prison 

San Quentin, Ca 94974 

DATED: 04/15/2010 

 

 

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-02477-RS Document 20 Filed 04/15/10 Page 4 of 4