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1

 Claude E. Finn is substituted as respondent. See Rule 2(a), Rules

Governing § 2254 Proceedings; Fed. R. Civ. P. 25(d).

United States District Court

Eastern District of California 

Andrew Otton, Jr.,

Petitioner, No. Civ. S 04-1914 GEB PAN P

vs. Findings and Recommendations

Claude E. Finn, Warden,

Respondent.

-oOoPetitioner, a state prisoner without counsel, seeks a writ

of habeas corpus. See 28 U.S.C. § 2254. Respondent1 moves to

dismiss. Petitioner opposes.

November 2, 1983, petitioner pleaded guilty of first degree

murder and February 8, 1984, the trial court sentenced him to 25

years to life in prison. The appellate court affirmed the

conviction and the California Supreme Court denied review and

denied habeas relief.

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2

October 3, 2003, petitioner filed a petition for a writ of

habeas corpus in the trial court asserting the Board of Prison

Terms’ (BPT) decision to deny petitioner release to parole

violated petitioner’s plea agreement. October 30, 2003, the

court denied relief. November 19, 2003, petitioner sought

rehearing of the denial. December 18, 2002, the court denied

rehearing. March 29, 2004, petitioner filed a petition for a

writ of habeas corpus in the appellate court, asserting BPT

violated petitioner’s plea agreement. March 30, 2004, the court

denied relief. April 14, 2004, petitioner filed a“petition for

review” in the California Supreme Court, asserting BPT violated

petitioner’s plea agreement. 

Respondent contends this action should be dismissed under

the abstention doctrine. The abstention doctrine requires

federal courts generally to refrain from interfering with state

criminal prosecutions. Younger v. Harris, 401 U.S. 37, 46

(1971). But petitioner already has been prosecuted and convicted

and the California courts have affirmed the judgment. Since

petitioner challenges the BPT’s decision not to release him to

parole and has a challenge pending in state court, the exhaustion

doctrine applies.

A district court may not grant a petition for a writ of

habeas corpus unless the applicant has exhausted the remedies 

available in the courts of the State unless there is no state

corrective process or the circumstances render such process

ineffective to protect the rights of the applicant. 28 U.S.C. §

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3

2254(b)(1). A petitioner satisfies the exhaustion requirement by

presenting both the facts and the legal theory to the highest

state court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard

v. Connor, 404 U.S. 270, 278 (1971). General appeals to

constitutional principles, such as due process, equal protection

and the right to a fair trial, are insufficient to exhaust a

claim. See Gray v. Netherland, 518 U.S. 152, 162-63 (1996). A

petitioner must identify the “specific federal constitutional

guarantee,” Gray, 518 U.S. at 162-63, even if the facts make a

constitutional theory “self-evident.” See Anderson v. Harless,

459 U.S. 4, 7 (1982). 

A claim is unexhausted if any state remedy is available. 

See O’Sullivan v. Boerckel, 526 U.S. 838 (1999) (petitioner must

seek discretionary review from state court of last resort);

Roberts v. Arave, 874 F.2d 528, 529 (9th Cir. 1988)(no exhaustion

where state supreme court referred petitioner’s appeal of trial

court’s denial of post-conviction relief to lower appellate court

and petitioner failed to appeal lower court’s disposition of that

appeal to state supreme court). An unexhausted petition must be

dismissed. Picard, 404 U.S. at 271. 

Petitioner contends that since his April 14, 2004, “petition

for review” has been pending for more than 90 days, it is deemed

denied pursuant to Rule 28.2(b), California Rules of Court. 

Respondent, however, provides evidence the California Supreme

Court construed petitioner’s April 14, 2004, application as a

habeas petition. 

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2 Petitioner is advised that a one-year limitation period applies to

federal habeas corpus actions. 28 U.S.C. § 2244(d). If the district judge

adopts these findings and recommendations and dismisses this action,

petitioner must proceed in a timely fashion once the California Supreme Court

resolves his petition.

4

In lieu of a habeas petition a prisoner may, within 10 days

of an appellate court’s order denying habeas relief, file a

petition for review in the California Supreme Court. See

California Rules of Court, Rule 28(a)(1) (a party may seek review

of “any decision of the Court of Appeal”); In re Reed, 33 Cal.3d

914, n.2, (Cal. 1983) (overruled on other grounds). Petitioner

filed his application more than 10 days after the appellate court

denied habeas relief. The California Supreme Court apparently

construed the application as a petition for habeas corpus rather

than reject it as an untimely petition for review.

Accordingly, since petitioner’s claims are pending before

the California Supreme Court on a petition for habeas corpus, the

claims in petitioner’s federal habeas petition are unexhausted. 

For these reasons, I recommend respondent’s January 13, 2005,

motion to dismiss be granted2 and this action be dismissed

without prejudice.

Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Written objections may be

filed within 20 days of service of these findings and

recommendations. The document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The district

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judge may accept, reject, or modify these findings and

recommendations in whole or in part.

Dated: June 7, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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