United States District Court, C.D. California
Robert Sisco, Jr.
Sisco, Jr., pro se
PRESENT: THE HONORABLE PAUL L. ABRAMS JUDGE
February 23, 2017, petitioner filed a civil rights complaint,
which the Court dismissed on February 27, 2017, with leave to
amend. (Docket Nos. 1, 4). In the Order dismissing, the Court
explained that because it appeared that petitioner was
challenging the fact or duration of his sentence, his claims
of ineffective assistance of counsel, delay of trial,
involuntary plea, and judicial bias should be raised in a
habeas corpus action. The Court also pointed out that it
could not, at that time, determine if petitioner met the
timing requirements for filing a habeas petition, or if
petitioner had properly exhausted his claims. (Docket No. 4).
on March 17, 2017, petitioner filed a Petition for Writ of
Habeas Corpus by a Person in State Custody pursuant to 28
U.S.C. § 2254 ("Petition"). The Petition
challenges petitioner's 2016 conviction in the San
Bernardino County Superior Court, case number 16CR-001241,
for assault with a deadly weapon (Cal. Penal Code §
245(a)(1)). (Petition at 2). Petitioner indicates in the
Petition that he did not file a direct appeal and has not
filed any state habeas petitions. (Petition at 2-3).
matter of comity, a federal court will not entertain a habeas
corpus petition unless the petitioner has exhausted the
available state judicial remedies on every ground presented
in the petition. Rose v. Lundy, 455 U.S. 509,
518-22, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The habeas
statute explicitly provides that a habeas petition 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). Moreover, if the exhaustion requirement is
to be waived, it must be waived expressly by the state,
through counsel. See 28 U.S.C. § 2254(b)(3).
requires that petitioner's contentions be fairly
presented to the state supreme court even if that court's
review is discretionary. O'Sullivan v. Boerckel
526 U.S. 838, 845-47, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999);
James v. Giles. 221 F.3d 1074, 1077, n.3 (9th Cir.
2000). Petitioner must give the state courts "one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process" in order to exhaust his claims.
O'Sullivan, 526 U.S. at 845. A claim has not
been fairly presented unless the prisoner has described in
the state court proceedings both the operative facts and the
federal legal theory on which his claim is based. See
Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887,
130 L.Ed.2d 865 (1995); Picard v. Connor. 404 U.S.
270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Johnson
v. Zenon. 88 F.3d 828, 830 (9th Cir. 1996); Bland v.
Cal. Dep't of Corr.. 20 F.3d 1469, 1473 (9th Cir.
1994). overruled on other grounds by Schell v.
Witek, 218 F.3d 1017 (9th Cir. 2000). Petitioner has the
burden of demonstrating that he has exhausted available state
remedies. See, e.g.. Brown v.
Cuyler, 669 F.2d 155, 158 (3d Cir. 1982).
Petition, petitioner asserts that his right to a speedy trial
was violated, his attorney provided ineffective assistance,
and the judge committed misconduct. (Petition at 5,
Attachment). Petitioner admits that he did not file a direct
appeal or seek any state habeas relief prior to filing the
Petition. (Petition at 2-3). Accordingly, the Petition
appears to be fully unexhausted.
later than April 10, 2017, petitioner is ordered to show
cause why the instant Petition should not be dismissed as
fully unexhausted. To avoid dismissal, petitioner must file
proof with this Court that each of his grounds for relief
raised in the Petition has previously been presented to the
California Supreme Court, by providing this Court with a
complete copy of either the petition for review or state
habeas petition raising each of those claims to the
California Supreme Court. Filing of such proof shall be
deemed compliance with this Order to Show Cause.
is advised that his failure to timely file a response to this
Order, as set forth herein, will result in the Petition being
dismissed as unexhausted, and for failure to prosecute and
follow Court orders.
is also advised that the filing of a petition for federal
habeas corpus relief does not toll the
AEDPA's one-year statute of limitations. Duncan v.
Walker, 533 U.S. 167, 172, 121 S.Ct. 2120, 150 L.Ed.2d
 The AEDPA imposes a one-year period of
limitation for state prisoners to file a federal petition for
writ of habeas corpus. 28 ...