The opinion of the court was delivered by: Hon. Jean P. Rosenbluth, Magistrate Judge
Joe Roper n/a Deputy Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS: None present None present
PROCEEDINGS: (IN CHAMBERS)
On August 29, 2011, Petitioner filed a habeas petition in Case No. EDCV 11-1368-ODW (JPR). From the face of the Petition it was unclear whether Petitioner had ever exhausted his remedies in state court. Accordingly, the Court dismissed the Petition with leave to amend to correct that and other deficiencies. On September 15, 2011, Petitioner filed a First Amended Complaint, which made clear that he had never submitted his claims to the California Supreme Court, in that he had not filed a Petition for Review in that court and had never filed any state habeas petitions. Accordingly, on November 28, 2011, the District Court dismissed the First Amended Petition without prejudice.
On April 19, 2012, Petitioner filed a Petition for Writ of Habeas Corpus, which was assigned a new case number. Although Petitioner has now apparently presented his claims to the state superior court in a state habeas petition, which that court denied on December 30, 2011 (Pet. at 27), he still appears never to have presented the claims to the California Supreme Court. Although Petitioner attaches to the federal Petition what he purports is a petition filed in the California Supreme Court (Pet. at 35-41), it was apparently mailed to an incorrect address in Riverside instead of Sacramento. This Court's review of the California Appellate Courts' website confirms that the state supreme court has never received, and has not adjudicated nor does it have pending, a habeas petition on behalf of Petitioner.
For the reasons stated in the Court's Report and Recommendation in Case No. EDCV 11-1368, which Petitioner has attached to his new federal Petition (Pet. at 30-34), this Court may not consider the claims in Petitioner's new Petition because they have not been exhausted in state court. IT THEREFORE IS ORDERED that on or before May 15, 2012, Petitioner show cause in writing, if he has any, why this action should not be dismissed because Petitioner has still failed to exhaust his remedies in state court.
© 1992-2012 VersusLaw ...