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Holmes v. State

United States District Court, Central District of California

January 8, 2015

Samuel M. Holmes
v.
State of California

Samuel M. Holmes, pro se.

PROCEEDINGS: (IN CHAMBERS)

PAUL L. ABRAMS, U.S. DISTRICT JUDGE.

On December 30, 2014, petitioner filed a Petition for Writ of Habeas Corpus.

The Petition indicates that on September 15, 2014, petitioner was convicted in Los Angeles County Superior Court of possession of a controlled substance pursuant to California Health and Safety Code sections 11350(a)(1) and 11377(a)(1). (Pet. at 2). Petitioner seeks to be resentenced pursuant to California's recently passed Proposition 47, which prospectively makes violations of certain sections of California's Health and Safety Code misdemeanors, rather than felonies. (Pet. at 3); Cal. Penal Code § 1170.18 (a).

It appears that petitioner intended to file his Petition in state court. Petitioner entered the title "State of California County Los Angel[e]s Superior Court" on the heading of the Petition, and addressed the envelope containing the Petition to the "Los Angeles County Superior Court." (Pet. at 1; Envelope). However, he used the mailing address of this Court, the United States District Court for the Central District of California. Nevertheless, it appears that this matter properly belongs in the Los Angeles County Superior Court, petitioner's sentencing court. (Pet. at 2); Cal. Penal Code § 1170.18(a) (a person serving a sentence for a conviction of a felony who would have been guilty of a misdemeanor had Proposition 47 been in place at the time of the offense "may petition for a recall of sentence before the trial court that entered the judgment of conviction in his ... case to request resentencing . . ."). Indeed, the Los Angeles County Superior Court calendar website reflects that petitioner has two Proposition 47 Petition hearings already scheduled in that court for later this month. (Official Records of California Courts).[1] As such, even if petitioner intended to file this Petition in this Court, it appears that his claims have not been exhausted in the state courts. 28 U.S.C. § 2254(b)(1)(A) (a state prisoner must exhaust his state court remedies on every ground presented in a petition before a federal court may consider granting habeas corpus relief); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

Accordingly, petitioner is ordered to show cause, no later than January 22, 2015, why this federal action should not be dismissed because it is not properly before this Court. Filing by petitioner, on or before January 22, 2015, of a Notice of Dismissal or a response to the Order to Show Cause, shall be deemed compliance with this Order to Show Cause.

Petitioner is advised that his failure to timely file a response to this Order, as set forth herein, will result in an order that the matter be dismissed for failure to follow Court orders. The clerk is directed to send petitioner a copy of a Notice of Dismissal form along with this Order, as well as a copy of his Petition.


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