United States District Court, C.D. California
May 29, 2014
Christopher Carrea Jr.
State of California, et al.
ORDER TO SHOW CAUSE RE: DISMISSAL OF APPARENTLY UNEXHAUSTED PETITION
MARGARET A. NAGLE, Magistrate Judge.
PROCEEDINGS (In Chambers):
This action commenced on April 18, 2014, when Petitioner filed a habeas petition pursuant to 28 U.S.C. § 2254 ("Petition") in the United States District Court for the Northern District of California. The Northern District thereafter ordered that the Petition be transferred to this District, in which it was received and filed on May 20, 2014.
The Petition stems from Petitioner's most recent conviction in the San Diego Superior Court. Petitioner alleges that, on January 4, 2013, he was convicted and sentenced in San Diego Superior Court Case No. SCD240790 to a seven-year term but is required to serve only 34% of that sentence (the "State Conviction"). (Petition at 1.) The Petition pleads a single claim. Petitioner alleges that state officials have failed to comply with a February 10, 2014 Order issued in a case pending in the United States District Court for the Eastern District of California, Case No. 90-CV-0520 (the Coleman/Plato actions), which relates to certain prison population reduction measures to be taken by the State of California. Petitioner contends that, pursuant to the February 10, 2014 Order, Respondents were required to immediately recalculate his release date and his good time credits, so that he will serve no more than 34% of his sentence imposed for the State Conviction. (Petition at 5 and attached page.) Petitioner alleges that he appealed the State Conviction, and it was affirmed by the California Court of Appeal in 2013, and by the California Supreme Court in 2014. Petitioner further alleges that he has not filed any other state or federal proceedings with respect to the State Conviction. (Petition at 2-3.) Petitioner does not allege that he has exhausted his instant claim. (Petition, passim.)
Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has taken judicial notice of the dockets and case records available electronically through the Appellate Courts Case Information website of the California Courts. Those judicially noticed dockets and records show that: Petitioner filed an appeal after he sustained the State Conviction and was sentenced; the sole issue raised by Petitioner on appeal was a claim that the trial court abused its discretion by admitting evidence of seven prior incidents of violence or threats by Petitioner against the same victim; on February 25, 2014, the California Court of Appeal affirmed the State Conviction (Case No. D063357); and on April 30, 2014, the California Supreme Court denied the petition for review filed by Petitioner (Case No. S217438). The dockets and records of the California Court of Appeal and California Supreme Court do not show any filing by Petitioner that raised the claim alleged in the instant Petition. Accordingly, the Petition appears to be unexhausted.
As the evidence of record shows that Petitioner has not presented his instant sentencing claim to the California Supreme Court, and thus has not afforded that court a chance to rule on the claim, the Petition is fully unexhausted and must be dismissed without prejudice. Rose , 455 U.S. at 522, 102 S.Ct. at 1205. Accordingly, Petitioner is ORDERED TO SHOW CAUSE why this action should not be dismissed without prejudice for lack of exhaustion. By no later than June 30, 2014, Petitioner shall file a response to this Order To Show Cause, in which he must either: establish that the claim alleged in the Petition is exhausted by submitting documentary evidence proving the fact of exhaustion; or concede that the Petition is unexhausted and, thus, must be dismissed without prejudice.
Petitioner is cautioned that a failure to respond to this Order by June 30, 2014, will be deemed to constitute an admission that the Petition is unexhausted and thus must be dismissed, and the Court will forward the case to the United States District Judge with a recommendation that this action be dismissed without prejudice for lack of exhaustion.
IT IS SO ORDERED.