Joe Nathan Taylor v. F. Gonzalez, No. 2:2008cv08602 - Document 3 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS by Judge George H. King. (Made JS-6. Case Terminated) (esa)

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1 2 3 E-FILED: 1/13/2009 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 JOE NATHAN TAYLOR, 12 ) ) ) ) ) ) ) ) ) ) Petitioner, 13 v. 14 F. GONZALEZ, 15 Respondent. No. CV 08-08602-GHK (VBK) MEMORANDUM AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS 16 17 On December 29, 2008, Joe Nathan Taylor (hereinafter referred to 18 as Petitioner ) filed a Petition for Writ of Habeas Corpus by a 19 Person in State Custody pursuant to 28 U.S.C. §2254 in the United 20 States 21 Petitioner pled guilty to violating California Penal Code ( PC ) 22 §286(d), 23 sentenced to five years in prison. (Petition at 2.) 24 not file an appeal in the California Court of Appeal nor a Petition 25 for Review in the California Supreme Court. District Court forcible for sodomy, the in Central January of District 1989. of California. Petitioner was Petitioner did Id. at 2-3. 26 Petitioner filed a Notice of Motion and Motion to Withdraw 27 Guilty Plea: Points and Authorities and Affidavit in Support of 28 Motion to Withdraw Guilty Plea in the Los Angeles County Superior 1 Court. (See attachment to Petition.) On June 19, 2008, the Los 2 Angeles County Superior Court issued a minute order requesting the 3 District Attorney to informally respond. (See minute order dated June 4 19, 2008 attached to Petition.) 5 On October 6, 2008, the Los Angeles County Superior Court issued 6 a minute order denying Petitioner s Writ Petition filed on September 7 16, 2008. 8 Writ request and notes the case of People v. McClellan, 6 CA 4th 367, 9 which stated Petitioner s position, but for the erroneous advice, 10 defendant would not have entered the guilty plea; but then went on to 11 state, since the parties had not mentioned Penal Code Section 290 12 requirements in negotiating the agreement; hence defendant/Petitioner 13 is 14 Petitioner was able to resolve the case in conjunction with Case 15 A439418 pending at the same time separately and as indicated in 16 McClellan, the plea offered a substantial benefit to the defendant/ 17 Petitioner. (See minute order dated October 6, 2008 attached to 18 Petition.) not The Court noted that it had read and reviewed the current entitled to relief. The Court further noted since 19 Petitioner has raised the following five claims in the within 20 Petition: (1) ineffective assistance of counsel; (2) the court did 21 not warn of possible sex offender registration nor did the court 22 require or indicate in a minute order or abstract of judgment; (3) had 23 [Petitioner] known or been advised of sex offender registration 24 Petitioner 25 [Petitioner] was not advised that guilty plea would reflect forcible 26 sodomy but a package deal all defendants must take dismissing 27 additional charges; and (5) because it waives numerous constitutional 28 rights a guilty plea must be knowing, intelligent and voluntary. (See would not have changed 2 plea to that of guilty; (4) 1 Petition at 5-6.) 2 It appears conclusively from the face of the Petition that state 3 remedies have not been exhausted. 4 Petition whatsoever that the California Court of Appeal or California 5 Supreme Court have been given an opportunity to rule on Petitioner s 6 contentions. 7 There is no indication in the A federal court will not review a state prisoner s petition for 8 writ 9 exhausted available state remedies on each and every claim presented. 10 28 U.S.C. § 2254(b) and (c); Carothers v. Rhay, 594 F.2d 225, 228 (9th 11 Cir. 1979); see Rose v. Lundy, 455 U.S. 509, 522 (1982). 12 of federalism, 28 U.S.C. § 2254 requires federal courts to give the 13 states an initial opportunity to correct alleged violations of its 14 prisoners federal rights. Kellotat v. Cupp, 719 F.2d 1027, 1029 (9th 15 Cir. 1983). 16 of habeas corpus unless it appears that the prisoner has For reasons Exhaustion requires that the prisoner s contentions be fairly 17 presented to the highest court of the state. 18 F.2d at 228; see Allbee v. Cupp, 716 F.2d 635, 636-37 (9th Cir. 1983). 19 A 20 described in the state court proceedings both the operative facts and 21 the federal legal theory on which his claim is based. 22 Harless, 459 U.S. 4, 6 (1982); Pappageorge v. Sumner, 688 F.2d 1294 23 // 24 // 25 // 26 // 27 // 28 // claim has not been fairly presented 3 Carothers, supra, 594 unless the prisoner has See Anderson v. 1 2 3 (9th Cir. 1982), cert. denied, 459 U.S. 1219 (1983). Accordingly, it is ORDERED that the Petition be dismissed without prejudice. 4 5 DATED: 1/13/09 GEORGE H. KING UNITED STATES DISTRICT JUDGE 6 7 8 Presented this 6th January, 2009 by: day of 9 10 11 /S/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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