United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF
PETITION FOR WRIT OF HABEAS CORPUS
is proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
April 20, 2016,  Petitioner filed the instant petition for
writ of habeas corpus. (ECF No. 1). On May 25, 2016, the
Court ordered Petitioner to show cause why the petition
should not be dismissed for nonexhaustion and untimeliness.
(ECF No. 6). On May 25, 2016, the order to show cause was
served on Petitioner and contained notice that a response
should be filed within thirty days of the date of service of
the order. Over thirty days have passed and Petitioner has
not responded to the Court's order to show cause.
of the Rules Governing Section 2254 Cases requires
preliminary review of a habeas petition and allows a district
court to dismiss a petition before the respondent is ordered
to file a response, if it “plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.”
petitioner in state custody who is proceeding with a petition
for writ of habeas corpus must exhaust state judicial
remedies. 28 U.S.C. § 2254(b)(1). The exhaustion
doctrine is based on comity to the state court and gives the
state court the initial opportunity to correct the
state's alleged constitutional deprivations. Coleman
v. Thompson, 501 U.S. 722, 731 (1991); Rose v.
Lundy, 455 U.S. 509, 518 (1982). A petitioner can
satisfy the exhaustion requirement by providing the highest
state court with a full and fair opportunity to consider each
claim before presenting it to the federal court.
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); Duncan v. Henry, 513 U.S. 364, 365 (1995);
Picard v. Connor, 404 U.S. 270, 276 (1971).
it is unclear whether Petitioner raised his claims before the
California Supreme Court. It is possible that Petitioner
presented all of his claims to the California Supreme Court
and failed to indicate this to the Court, but as Petitioner
has not responded to the order to show cause, it appears that
Petitioner failed to exhaust his claims in the instant
petition. If Petitioner has not sought relief in the
California Supreme Court, the Court cannot proceed to the
merits of those claims. 28 U.S.C. § 2254(b)(1).
Statute of Limitations
April 24, 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).
The AEDPA imposes various requirements on all petitions for
writ of habeas corpus filed after the date of its enactment.
Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries
v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc).
The instant petition was filed after the enactment of the
AEDPA and is therefore governed by its provisions.
AEDPA imposes a one-year period of limitation on petitioners
seeking to file a federal petition for writ of habeas corpus.
28 U.S.C. § 2244(d)(1). Section 2244(d) provides:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The