United States District Court, E.D. California
ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE
DISMISSED FOR FAILURE TO EXHAUST STATE REMEDIES [TWENTY-ONE
Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE
filed a habeas petition on February 13, 2017, challenging his
2012 conviction in Kern County Superior Court of multiple
gang-related crimes. The petition appears to be unexhausted;
therefore, the Court ORDERS Petitioner to show cause why the
petition should not be dismissed without prejudice.
Preliminary Review of Petition
of the Rules Governing Section 2254 Cases allows a district
court to dismiss a petition if it “plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court . . . .”
Rule 4 of the Rules Governing Section 2254 Cases. The
Advisory Committee Notes to Rule 8 indicate that the court
may dismiss a petition for writ of habeas corpus, either on
its own motion under Rule 4, pursuant to the respondent's
motion to dismiss, or after an answer to the petition has
been filed. Herbst v. Cook, 260 F.3d 1039 (9th
petitioner who is in state custody and wishes to collaterally
challenge his conviction by 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).
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. Duncan v. Henry, 513 U.S. 364,
365 (1995). A federal court will find that the highest state
court was given a full and fair opportunity to hear a claim
if the petitioner has presented the highest state court with
the claim's factual and legal basis. Duncan, 513
U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes,
504 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis).
the petitioner must have specifically told the state court
that he was raising a federal constitutional claim.
Duncan, 513 U.S. at 365-66. In Duncan, the
United States Supreme Court reiterated the rule as follows:
In Picard v. Connor, 404 U.S. 270, 275 . . . (1971),
we said that exhaustion of state remedies requires that
petitioners “fairly presen[t]” federal claims to
the state courts in order to give the State the
“opportunity to pass upon and correct alleged
violations of the prisoners' federal rights” (some
internal quotation marks omitted). If state courts are to be
given the opportunity to correct alleged violations of
prisoners' federal rights, they must surely be alerted to
the fact that the prisoners are asserting claims under the
United States Constitution. If a habeas petitioner wishes to
claim that an evidentiary ruling at a state court trial
denied him the due process of law guaranteed by the
Fourteenth Amendment, he must say so, not only in federal
court, but in state court.
Duncan, 513 U.S. at 365-366. The Ninth Circuit
examined the rule further, stating:
Our rule is that a state prisoner has not “fairly
presented” (and thus exhausted) his federal claims in
state court unless he specifically indicated to that
court that those claims were based on federal law.
See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir.
2000). Since the Supreme Court's decision in
Duncan, this court has held that the petitioner
must make the federal basis of the claim explicit either by
citing federal law or the decisions of federal courts, even
if the federal basis is “self-evident, "
Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999)
(citing Anderson v. Harless, 459 U.S. 4, 7 . . .
(1982), or the underlying claim would be decided under state
law on the same considerations that would control resolution
of the claim on federal grounds. Hiivala v. Wood,
195 F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v.
Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . .
In Johnson, we explained that the petitioner must
alert the state court to the fact that the relevant claim is
a federal one without regard to how similar the state and
federal standards for reviewing the claim may be or how
obvious the violation of federal law is.
Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir.
2000) (italics added), as amended by Lyons v.
Crawford, 247 F.3d 904, ...