United States District Court, N.D. California, Eureka Division
ORDER FOR PETITIONER TO SHOW CAUSE
NANDOR J. VADAS, Magistrate Judge.
Petitioner, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 5.) Petitioner was convicted in Contra Costa County, which is in this district, therefore venue is proper here. See 28 U.S.C. § 2241(d). Petitioner paid the filing fee.
A jury convicted petitioner of several counts of sexual acts with a child. He was sentenced to 104 year to life in prison.
A. Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court must "specify all the grounds for relief available to the petitioner... [and] state the facts supporting each ground." Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. "[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error.'" Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). "Habeas petitions which appear on their face to be legally insufficient are subject to summary dismissal." Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 1108 (9th Cir. 1996) (Schroeder, J., concurring).
B. Legal Claims
The California Court of Appeal affirmed the judgment and denied a habeas petition on August 22, 2013. People v. Mendoza, 2013 WL 4509974 (Cal.App. 1 Dist., 2013). Petitioner has filed a request for a stay and he states he is exhausting state remedies as his appellate attorney failed to file a petition for review in the California Supreme Court and he states a petition is pending. Court records indicate that a petition in case S219852 was filed on July 10, 2014, with the California Supreme Court.
Before he may challenge either the fact or length of his confinement in a habeas petition in this court, petitioner must present to the California Supreme Court any claims he wishes to raise in this court. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every claim raised in federal habeas petition must be exhausted). The general rule is that a federal district court must dismiss a federal habeas petition containing any claim as to which state remedies have not been exhausted. Id.
A fully unexhausted federal habeas petition may not be stayed and must be dismissed. See, e.g., Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding that a fully unexhausted petition may not be stayed and observing: "Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to the petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust."); Jones v. McDaniel, 320 Fed.Appx. 784, 786 (9th Cir.2009) (affirming the dismissal of a fully unexhausted petition and denial of a stay, because a " Rhines stay is only available for a mixed habeas petition where at least some of the claims have been exhausted, and none of [petitioner's] claims were exhausted"). It appears that petitioner has presented a fully unexhausted petition. If this is correct, the petition must be dismissed without prejudice and may be re-filed once the claims have been exhausted. However, petitioner will be provided an opportunity to demonstrate that some of the claims have already been exhausted.
Petitioner shall show cause within fourteen (14) days of the date of service of this order why this petition should not be dismissed without prejudice as unexhausted. Failure to file a response within the ...