United States District Court, C.D. California
Present: The Honorable KENLY KIYA KATO, UNITED STATES
(In Chambers) Order to Show Cause Why Petition Should Not Be
Dismissed Due to Failure to Exhaust
March 1, 2017, petitioner Jack Robert Smith
(“Petitioner”) constructively filed1 a Petition
for Writ of Habeas Corpus under 28 U.S.C. § 2254 (the
“Petition”). Petitioner challenges his civil
commitment at Patton State Hospital after he was found not
guilty by reason of insanity in San Bernardino Superior
Court. This Court, having reviewed the Petition, finds the
Petition is subject to dismissal because Petitioner has not
exhausted his state remedies. The Court will not make a final
determination regarding whether the Petition should be
dismissed, however, without giving Petitioner an opportunity
to address these issues.
the “mailbox rule, ” when a pro se prisoner gives
prison authorities a pleading to mail to court, the court
deems the pleading constructively “filed” on the
date it is signed. Roberts v. Marshall, 627 F.3d
768, 770 n.1 (9th Cir. 2010) (citation omitted).
PETITION IS A WHOLLY UNEXHAUSTED PETITION SUBJECT TO
person seeking habeas relief must exhaust his state court
remedies before a federal court may consider granting relief.
28 U.S.C. § 2254(b)(1)(A); O'Sullivan v.
Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d
1 (1999). To satisfy the exhaustion requirement, a habeas
petitioner must fairly present his federal claims in the
state courts in order to give the State the opportunity to
pass upon and correct alleged violations of the
prisoner's federal rights. Duncan v. Henry, 513
U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per
curiam). A habeas petitioner must give the state courts
“one full opportunity” to decide a federal claim
by carrying out “one complete round” of the
state's appellate process in order to properly exhaust a
claim. O'Sullivan, 526 U.S. at 845.
petitioner in California state custody, this generally means
that the petitioner must have fairly presented his claims in
a petition to the California Supreme Court. See Id.
(interpreting 28 U.S.C. § 2254(c)); Gatlin v.
Madding, 189 F.3d 882, 888 (9th Cir. 1999) (applying
O'Sullivan to California). A claim has been
fairly presented if the petitioner has both “adequately
described the factual basis for [the] claim” and
“identified the federal legal basis for [the]
claim.” Gatlin, 189 F.3d at 888.
case, based on the attachments to the Petition, Petitioner
appears to raise five grounds for relief. ECF Docket No.
(“Dkt.”) 1. However, it does not appear
Petitioner has presented any of these grounds to the
California Supreme Court, nor has the court ruled on any of
these claims. In addition, Petitioner concedes he has a state
habeas petition pending in the California Supreme Court.
Id. at 3, 8, 10.
it is unclear from the Petition whether Petitioner has, in
fact, filed a petition for release under Section 1026.2 of
the California Penal Code. A petitioner “committed to a
state mental hospital will not be released from confinement,
parole or outpatient status until the expiration of the
maximum term of the commitment or when the committing court
determines that the person's sanity has been
restored.” Grondorf v. Graziani, No. C02-5958
SRI (PR), 2003 WL 21838186, at *1 (N.D. Cal. July 31, 2003);
Cal. Penal Code §§ 1026.1, 1026.2. Because Section
1026.2 provides Petitioner with an available statutory
remedy, he will need to exhaust this option in state court
prior to seeking habeas relief.
as none of the grounds in the instant Petition have been
ruled on by the California Supreme Court, the Petition is
both wholly unexhausted and premature.