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Angulo v. Bleum

United States District Court, C.D. California

October 27, 2014

LUIS MARIO ANGULO V. AKA LUIS MARIO GUERRERO Petitioner,
v.
BYRON BLEUM, Respondent.

ORDER TO SHOW CAUSE

ALICIA G. ROSENBERG, Magistrate Judge.

On September 22, 2014, Petitioner filed a Petition for Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, it appears that Petitioner has failed to exhaust his administrative remedies.

The court, therefore, orders Petitioner to show cause, on or before November 27, 2014, why this court should not recommend dismissal of the petition without prejudice based on failure to exhaust administrative remedies.

I.

PROCEDURAL BACKGROUND

On July 7, 2014, Petitioner pled no contest to indecent exposure and was sentenced to 16 months. (Petition at 1-2.)

The court has searched the California Appellate Courts online docket using the name Luis Mario Angulo, the name Luis Mario Guerrero, [1] and the case number (BA425956) provided by Petitioner (Petition at 2) and found no support for Petitioner's contention that he appealed his plea or filed any habeas petitions relevant to his plea. ( See Petition at 2-3.)

On September 22, 2014, Petitioner filed the instant petition in this court in which he raises four grounds. (Petition at 6-9.)

II.

EXHAUSTION

The AEDPA provides that a petition for writ of habeas corpus brought by a person in state custody "shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1).

Exhaustion requires that Petitioner's contentions be fairly presented to the state's highest court, in this case the California Supreme Court. James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994). Petitioner bears the burden of demonstrating that he described to the California Supreme Court both the operative facts and the federal legal theory on which his claim is based. Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995).

Based on the court's review of California's online docket, Petitioner has never presented any grounds for relief to the California Supreme Court. Thus, the petition appears to be completely unexhausted and is subject to dismissal without prejudice on that basis. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).

III.

ORDER TO SHOW CAUSE

IT IS THEREFORE ORDERED that, on or before November 27, 2014, Petitioner shall show cause why the court should not recommend dismissal of the petition without prejudice based on failure to exhaust administrative remedies.

If Petitioner fails to respond to the order to show cause by November 27, 2014, the petition is subject to dismissal.


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