UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
May 1, 2012
The opinion of the court was delivered by: Hon. Margaret A. Nagle , United States Magistrate Judge
CIVIL MINUTES - GENERAL
T ENTRY: ORDER TO SHOW CAUSE RE: DISMISSAL FOR LACK OF EXHAUSTION
Earlene Carson N/A
Deputy Clerk Court Reporter/Tape No.
ATTORNEYS PRESENT FOR PETITIONER: ATTORNEYS PRESENT FOR RESPONDENTS: N/A N/A
PROCEEDINGS (In Chambers):
February 29, 2012, a 28 U.S.C. § 2254 habeas petition submitted by Petitioner was filed in this district
Petitioner represented, under oath, that: he filed a petition for review in the California Court in Case No. S189196, in which he presented the claims alleged in the Petition; and his for review was denied on March 2, 2011. (Petition at 3, 7.) Based on that representation, the appeared to be exhausted and timely, and thus, the Court ordered that the Petition be served on
Court now is in receipt of Respondent's motion to dismiss the Petition filed on April 25, 2012 otion") and related lodgment of the state record ("Lodg."). In the Motion, Respondent argues that the is: untimely, because it was filed approximately two months after Petitioner's limitations period and fully unexhausted, because Petitioner did not file a petition for review in the California Court.
record shows that Petitioner was jointly tried and convicted with three co-defendants -- Jose L. David Monterrosa, and Larry Navarette. (Lodg. No. 2 at 2.) Petitioner and his three co-each represented by separate appellate counsel, appealed to the California Court of Appeal, and ovember 15, 2010, in a single decision, the California Court of Appeal affirmed the judgments against
(Lodg. No. 2.) Pursuant to Rule 8.500 of the California Rules of Court, Petitioner and his cohad until December 25, 2010, in which to seek review in the California Supreme Court. On 23, 2010, co-defendants Guevara and Monterrosa filed separate petitions for review in Case No. On December 27, 2010, the first court day after the Christmas holiday period, co-defendant filed a petition for review in Case No. S189196. (Lodg. No. 3.) The Court has examined the the docket for California Supreme Case No. S189196 lodged by Respondent (Lodg. No. 3) and, to Rule 201 of the Federal Rules of Evidence, has taken judicial notice of the docket information Case No. S189196, which is available at http://appellatecases.courtinfo.ca.gov. These public indicate that Petitioner did not file a petition for review in Case No. S189186. did not file a petition for review in the California Supreme Court, the Petition is fully and must be dismissed summarily. If, however, the docket for Case No. S189196 is incorrect *fn1
Petitioner did file a petition for review, the Petition may be exhausted and would be timely.
if Petitioner wishes this action to proceed, he must submit competent proof, by no later than 31, 2012, that he did, in fact, file a petition for review in the California Supreme Court that has been by the state high court. In particular, Petitioner must submit a copy of that petition for review and California Supreme Court order denying it. If Petitioner did not file a petition for review, this action dismissed, and Petitioner may wish to expedite matters by filing a voluntary dismissal. The Clerk to sent to Petitioner, along with this Order, Form CV-09 (Notice of Dismissal Pursuant to Rules of Civil Procedure 41(a) or (c)), with the case caption information filled-out on the form.
wishes to voluntarily dismiss this action, he should check the first box on this form, sign and form, and send the form to the court for filing by the May 31, 2012 deadline, which will result in action being dismissed without prejudice.
Petitioner is cautioned that a failure to comply with this Order the May 31, 2012 deadline will cause the Court to: presume that Petitioner did not file a petition for review with the California Supreme Court, and the Petition, therefore, is unexhausted; and recommend that this action be summarily dismissed for lack of exhaustion.