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United States District Court

Eastern District of California 

Kenneth Stovall,

Petitioner, No. Civ. S 04-2364 LKK PAN P

vs. Findings and Recommendations

Derral Adams, Warden,

Respondents.

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

of habeas corpus upon the grounds his counsel was ineffective and

his sentence is cruel and unusual. See 28 U.S.C. § 2254. 

Respondent moves to dismiss upon the ground the petition is

unexhausted. Petitioner filed no opposition.

January 24, 2004, petitioner was convicted in the Solano

County Superior Court pursuant to a guilty plea. 

Petitioner filed a petition for a writ of habeas corpus in

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the trial court. The court denied relief.

Petitioner filed a petition for a writ of habeas corpus in

the appellate court. The court denied relief.

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,” or unless there is no

State corrective process or “circumstances exist that render such

process ineffective to protect the rights of the applicant.” 28

U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion

requirement by presenting both the operative 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 “selfevident.” 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

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appeal to state supreme court). A petition containing only

unexhausted claims must be dismissed. Picard, 404 U.S. at 271. 

Respondent contends petitioner did not file a petition for

review or a petition for a writ of habeas corpus in the

California Supreme Court. Petitioner asserts he requested leave

to file an untimely appeal but adduces no evidence he was

permitted to do so. Petitioner neither asserts he presented his

claims to the California Supreme Court nor contends there are no

available state remedies.

Petitioner failed to exhaust available state remedies.

Petitioner’s federal petition should 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

judge may accept, reject, or modify these findings and

recommendations in whole or in part.

Dated: June 2, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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