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Fisher v. Planet

United States District Court, C.D. California

June 4, 2014

GARY FISHER, Petitioner,
v.
MICHAEL PLANET, Respondent.

ORDER TO SHOW CAUSE RE: DISMISSAL FOR LACK OF EXHAUSTION AND/OR UNTIMELINESS

MARGARET A. NAGLE, Magistrate Judge.

On March 31, 2014, Petitioner, a California state prisoner, filed a habeas petition pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of California ("Petition"). The Northern District thereafter transferred the Petition to this District, in which it is pending.

Petitioner alleges that, in 2005, he discovered that his "CJIS"[1] listed two criminal convictions sustained in the Ventura County Superior Court, one on April 30, 2002, and the other on February 3, 2004 (the "State Convictions"). Petitioner contends that this record is "false, " a "sham", and "manipulated, " because this is "way too many burglarys [ sic ]." Petitioner apparently contends that he did not sustain the State Convictions and they should not be included in the CJIS record of his criminal history. (Petition at 1-5.) Petitioner's allegations indicate that he did not file an appeal in connection with the State Convictions, and he affirmatively alleges that he did not pursue any post-conviction or collateral remedies - state or federal - with respect to the State Convictions. (Petition at 2-3.)

The Petition bears a proof of service in which Petitioner states, under penalty of perjury, that he placed the Petition in an envelope for mailing on March 25, 2014, for delivery to the Northern District. However, the application to proceed in forma pauperis submitted with the Petition bears a March 27, 2014 signature date. Thus, the Petition could not have been submitted for mailing any earlier than March 27, 2014. Pursuant to the "mailbox rule, " the Court will deem the Petition to have been "filed" on March 27, 2014.[2]

I. DISMISSAL APPEARS TO BE WARRANTED DUE TO LACK OF EXHAUSTION.

Federal courts may not grant habeas relief to a person held in state custody unless the petitioner has exhausted his available state-court remedies as to each of the issues presented. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy , 455 U.S. 509, 518, 102 S.Ct. 1198, 1203 (1982); Fields v. Waddington , 401 F.3d 1018, 1020 (9th Cir. 2005). "[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts." O'Sullivan v. Boerckel , 526 U.S. 838, 845, 119 S.Ct. 1728, 1732 (1999)(emphasis added); see also Baldwin v. Reese , 541 U.S. 27, 29, 124 S.Ct. 1347, 1349 (2004) (to give the State the chance to pass upon and resolve violations of his federal rights, a state prisoner must exhaust his available state remedies before seeking federal habeas relief).

To satisfy the exhaustion requirement, a petitioner must "fairly present" his federal claim to the state courts, i.e., give them a fair opportunity to consider and correct violations of the prisoner's federal rights. See Duncan v. Henry , 513 U.S. 364, 365, 115 S.Ct. 887, 888 (1995); Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) ( en banc ). A state prisoner seeking relief with respect to a California conviction is required to fairly present his federal claims to the California Supreme Court. See Baldwin , 541 U.S. at 29, 124 S.Ct. at 1349 (a state prisoner must fairly present his claim to a state supreme court having the power of discretionary review); Keating v. Hood , 133 F.3d 1240, 1242 (9th Cir. 1998).

Based upon the allegations of the Petition, it appears that Petitioner has not sought any state court relief with respect to the State Convictions. In an attempt to confirm whether the Petition is exhausted or unexhausted, the Court has reviewed the dockets for the California Supreme Court, which are available electronically, [3] and takes judicial notice of their contents pursuant to Federal Rule of Evidence 201. A search of those dockets under petitioner's various names[4] shows that the only action Petitioner has filed in the California Supreme Court is a habeas proceeding that commenced on December 2, 2013, and ended with a denial of relief on February 11, 2014 (Case No. S215016).

The state docket does not reveal whether Case No. S215016 relates to the State Convictions, one of Petitioner's other earlier convictions, or his current conviction. Given the affirmative allegation in the Petition that Petitioner has not sought any post-conviction or other state relief with respect to the State Convictions, it appears unlikely that Case No. S215016 has any relation to the State Convictions. If it does not, the Petition is unexhausted.

If the Petition is unexhausted, it must be dismissed without prejudice. Rose , 455 U.S. at 522, 102 S.Ct. at 1205.[5] Accordingly, Petitioner is ORDERED TO SHOW CAUSE why the Petition should not be dismissed, without prejudice, for lack of exhaustion. By no later than July 7, 2014, Petitioner shall file a response to this Order To Show Cause. If Petitioner concedes that the Petition is unexhausted, he shall state this concession clearly. If Petitioner disputes that the Petition is unexhausted, he must explain clearly and in detail why it is exhausted, and he must provide any available competent evidence that establishes the exhaustion of the Petition, including through an accurate and complete copy of the habeas petition he filed in Case No. S215016.

Petitioner is explicitly cautioned that his failure to comply with this Order will be deemed to constitute a concession that the Petition is unexhausted and may be dismissed on that ground.

II. DISMISSAL APPEARS TO BE WARRANTED DUE TO UNTIMELINESS

As briefly noted above, Petitioner appears to be complaining that the CJIS record of his criminal history lists convictions allegedly sustained in April 2002, and February 2004, which he believes he did not sustain. Petitioner admits that he has been aware of this allegedly erroneous information in his CJIS criminal history record since an unidentified date in 2005. The Petition, however, was not filed until late March 2014, ...


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