Lhevan v. Valenzuela

          ORDER TO SHOW CAUSE

          ALICIA G. ROSENBERG, United States Magistrate Judge.

         Order On July 5, 2016, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”). For the reasons discussed below, the Court orders Petitioner to show cause, on or before August 12, 2016, why this Court should not recommend dismissal without prejudice for failure to exhaust state remedies.

         I.

         EXHAUSTION

         The Petition was filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, the Court applies the AEDPA in reviewing the petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997).

         The AEDPA expressly 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 (1995).

         Petitioner states he pleaded guilty in Orange County Superior Court to a felony charge of making direct threats to injure a public employee, and to two other crimes.^[1](Petition at 1-2.) See Cal. Penal Code § 71(a). He asserts the following four claims:

1. The trial judge wrongly denied Petitioner’s motion to withdraw his plea, a motion made after Petitioner obtained the police report and concluded the case against him was weak.

2. Excessive bail in violation of the Eighth Amendment.

3. “I wasn’t given all the discovery until I arrived at . . . state prison.”

4. “Denied sufficient [resources] at Orange County jail to help defend myself.

I didn’t have access to a law library or even a pen.”

         Petitioner checks boxes on the form petition admitting that he did not appeal and, with one exception, that he did not raise these claims “through a post-conviction motion or petition for habeas corpus in a state trial court.” The exception is Ground Three, which petitioner says he raised in the ...