United States District Court, C.D. California
ORDER TO SHOW CAUSE
G. ROSENBERG, United States Magistrate Judge.
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.
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).
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).
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).
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.(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
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
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