United States District Court, D. Hawaii
A. OTAKE, UNITED STATES DISTRICT JUDGE.
the court is pro se Petitioner Corey Leong's petition for
writ of habeas corpus brought pursuant to 28 U.S.C. §
2254. See ECF No. 1-2 (rescanned Petition). Leong
challenges his conviction in State v. Leong,
2FFC-18-0000027 (Haw. 2d Cir. Family Ct. 2018), for Custodial
Interference in the First Degree. See Pet., ECF No.
1-2; see also
https://jimspss1.courts.state.hi.us/JEFS (visited Oct. 2,
repeatedly asserts that he has not presented his claims to
the Hawaii state courts. It therefore plainly appears from
the face of the Petition that Leong's claims are wholly
unexhausted. Accordingly, the Petition and this action are
DISMISSED without prejudice pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts, which requires prompt dismissal if “it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
pleaded no contest in 2FFC-18-0000027 on June 13, 2018, and
was sentenced to one-year incarceration with credit for time
served, to be followed by a four-year term of probation.
See 2FFC-18-0000027. He is scheduled to be released
in January 2019. See https://www.vinelink.com/#
(visited Oct. 4, 2018).
raises four grounds for relief: (1) Leilani S. Andaya
neglected, abused, and threatened their daughter between 2014
and late-2017, showing that he “had good cause to
protect said child and seek emergency custody in another
state.” Pet., ECF No. 1-2, PageID #31-33 (Grounds One
and Two); (2) his attorney coerced him into pleading no
contest and waiving his right to a jury trial and then
refused to file an appeal, in violation of the Sixth
Amendment, id., PageID #34 (Ground Three); and (3) a
family court judge and court staff in “FCP 13-1-0001,
” in which Leong allegedly sought a restraining order
against Andaya, were prejudiced and biased against him,
id. (Ground Four). Leong also claims that the Maui
County Police Department used unauthorized and excessive
force to remove his daughter from his custody. Id.,
THE PETITION IS DISMISSED
28 U.S.C. § 2254(b), habeas relief may not be granted
unless a petitioner has exhausted the remedies available in
state court. Exhaustion requires that the
petitioner's contentions were fairly presented to the
state courts, Ybarra v. McDaniel, 656 F.3d 984, 991
(9th Cir. 2011), and disposed of on the merits by the highest
court of the state, Greene v. Lambert, 288 F.3d
1081, 1086 (9th Cir. 2002). As a matter of comity, a federal
court will not entertain a habeas petition unless the
petitioner has exhausted the available state judicial
remedies on every ground presented. See Rose v.
Lundy, 455 U.S. 509, 518 (1982). A federal court may
raise the failure-to-exhaust issue sua sponte and summarily
dismiss on that ground. See Granberry v. Greer, 481
U.S. 129, 134-35 (1987); Stone v. City & Cty. of
San Francisco, 968 F.2d 850, 856 (9th Cir.
1991). A petitioner has the burden of demonstrating that he
has exhausted available state remedies. See, e.g.,
Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir.
1972) (per curiam); Rollins v. Superior Court, 706
F.Supp.2d 1008, 1011 (C.D. Cal. 2010).
remedies must be exhausted except in unusual circumstances.
Granberry, 481 U.S. at 134. If state remedies have
not been exhausted, the district court must dismiss the
petition. Rose, 455 U.S. at 510; Guizar v.
Estelle, 843 F.2d 371, 372 (9th Cir. 1988). A dismissal
solely for failure to exhaust is not a dismissal on the
merits, Howard v. Lewis, 905 F.2d 1318, 1322-23 (9th
Cir. 1990), and does not bar a petitioner from returning to
federal court after state remedies have been exhausted.
repeatedly asserts that his attorney refused to file an
appeal in 2FFC-18-0000027 and that he does not know how to do
so on his own. Thus, Leong admits that he has neither
directly appealed his June 13, 2018 conviction in
2FFC-18-0000027, nor filed a post-conviction petition raising
the claims he asserts in the Petition pursuant to Rule 40 of
the Hawaii Rules of Penal Procedure. Neither the Hawaii
Supreme Court nor the Intermediate Court of Appeals has been
given the opportunity to rule on Leong's claims.
may be satisfied if the petitioner's claims are clearly
barred under state law. See Castille v. Peoples, 489
U.S. 346, 351-52 (1989); Johnson v. Zenon, 88 F.3d
828, 831 (9th Cir. 1996). It is not “clear” that
Leong's claims are procedurally barred under Hawaii state
law, however. Although he may have waived the right to
directly appeal pursuant to his no contest plea, and this is
not explicit in the Petition, Leong may still have the right
to pursue post-conviction relief under Haw. R. Penal. P.
Even if there is some state procedural bar, that is a matter
that should be evaluated in the first instance by the Hawaii
state courts, and the Hawaii Supreme Court may nevertheless
choose to reach Leong's claims. The court expresses no
opinion regarding whether Leong may raise his claims under
Leong's argument that he is unable to proceed on his own
with such a petition is contradicted by his ability to file
the present Petition pro se within months of his conviction
and by his statements that he sought a temporary restraining
order against Ms. Anduya in “FCP 13-1-0001.”
court determines that a habeas petition contains only
unexhausted claims, it may dismiss the petition for failure
to exhaust. Rasberry v. Garcia,448 F.3d 1150, 1154
(9th Cir. 2006). Because Leong's Petition is wholly and
admittedly unexhausted, the Petition and this action are