August 8, 2013
CARLOS CUMPLIDO, Petitioner,
FRED FOULK, Acting Warden,  Respondent.
ORDER TO SHOW CAUSE
DAVID T. BRISTOW, Magistrate Judge.
On April 9, 2012, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Pet.") herein, accompanied by a supporting Memorandum ("Pet. Mem."). The Petition purports to be directed to his 2009 conviction for ten counts of second degree robbery, one count of attempted robbery, seven counts of felon in possession of a firearm, and one count of assault with a deadly weapon. In his Petition, petitioner appears to be alleging, inter alia, that his trial counsel was ineffective in failing to object at trial to an allegedly "inflamatory [sic] statement [made] by the prosecutor" regarding his criminal history during the Grand Jury proceedings. (Pet. Mem. at 3.)
Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless petitioner has exhausted the remedies available in the courts of the State. Exhaustion requires that the prisoner's contentions be fairly presented to the state courts and be disposed of on the merits by the highest court of the state. See James v. Borg , 24 F.3d 20, 24 (9th Cir. 1994); Carothers v. Rhay , 594 F.2d 225, 228 (9th Cir. 1979). Moreover, a claim has not been fairly presented unless the prisoner has described in the state court proceedings both the operative facts and the federal legal theory on which his claim is based. See Duncan v. Henry , 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam); Picard v. Connor , 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Johnson v. Zenon , 88 F.3d 828, 830 (9th Cir. 1996).
As a matter of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in the petition. See Rose v. Lundy , 455 U.S. 509, 518-22, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Petitioner has the burden of demonstrating that he has exhausted available state remedies. See, e.g., Brown v. Cuyler , 669 F.2d 155, 158 (3d Cir. 1982) (per curiam). However, the Ninth Circuit has held that, for purposes of exhaustion, pro se petitions are held to a more lenient standard than counseled petitions. See Sanders v. Ryder , 342 F.3d 991, 999 (9th Cir. 2003); Peterson v. Lampert , 319 F.3d 1153, 1159 (9th Cir. 2003) (en banc). The Ninth Circuit also has held that a federal court may raise the failure to exhaust issue sua sponte. See Stone v. City & Cnty. of San Francisco , 968 F.2d 850, 856 (9th Cir. 1992) (as amended).
Here, it appears from the face of the Petition that petitioner did not exhaust his state remedies with respect to his claim directed at the prosecutor's allegedly improper statements. As explained, petitioner appears to be alleging that his trial counsel was ineffective for failing to object and/or file a motion at trial based on an allegedly inflammatory statement made by the prosecutor during the Grand Jury proceedings. However, petitioner did not attempt to seek relief on this claim in the California Supreme Court. Petitioner did not file a Petition for Review in the California Supreme Court and petitioner's habeas petition in the California Supreme Court did not raise a claim similar to the one alleged in the Petition herein.
Accordingly, petitioner's inclusion of this claim in the Petition renders the Petition a "mixed petition" containing both exhausted and unexhausted claims. If it were clear that the California Supreme Court would hold that petitioner's unexhausted claim directed to the Grand Jury proceedings was procedurally barred under state law, then the exhaustion requirement would be satisfied. See Castille v. Peoples , 489 U.S. 346, 351-52, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); Johnson , 88 F.3d at 831. However, it is not "clear" here that the California Supreme Court will hold that petitioner's unexhausted claim is procedurally barred under state law. See, e.g., In re Harris , 5 Cal.4th 813, 825, 21 Cal.Rptr.2d 373 (1993) (granting habeas relief where petitioner claiming sentencing error, even though the alleged sentencing error was raised and rejected on direct appeal); People v. Sorensen , 111 Cal.App.2d 404, 405 (1952) (noting that claims that fundamental constitutional rights have been violated may be raised by state habeas petition). The Court therefore concludes that this is not an appropriate case for invocation of either "exception" cited above to the requirement that a petitioner's federal claims must first be fairly presented to and disposed of on the merits by the state's highest court.
Under the total exhaustion rule, if even one of the claims being alleged by a habeas petitioner is unexhausted, the petition must be dismissed. See Rose , 455 U.S. at 522; see also Coleman , 501 U.S. at 731; Castille , 489 U.S. at 349. However, the Supreme Court held that, in certain "limited circumstances, " a district court may stay a mixed petition and hold it in abeyance while the petitioner returns to state court to exhaust his unexhausted claims. See Rhines v. Weber , 544 U.S. 269, 277, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) (holding "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court"). Under Rhines, the prerequisites for obtaining a stay while the petitioner exhausts his state remedies are: (a) that the petitioner show good cause for his failure to exhaust his claims first in state court; (b) that the unexhausted claims not be "plainly meritless"; and (c) that petitioner not have engaged in "abusive litigation tactics or intentional delay." See id. at 277-78. Here, petitioner has not requested a stay and abeyance for purposes of exhausting the claim at issue, nor has he attempted to make the necessary showing of good cause for his failure to exhaust this claim.
IT THEREFORE IS ORDERED that, on or before September 4, 2013, petitioner either file a stay-and-abeyance application (if he believes he can make the requisite showings) or show cause in writing, if any he has, why the Court should not recommend that this action be dismissed without prejudice for failure to exhaust state remedies unless petitioner withdraws his unexhausted claim.