United States District Court, C.D. California
ORDER TO SHOW CAUSE
D. EARLY UNITED STATES MAGISTRATE JUDGE
March 27, 2017, Petitioner filed a Petition for Writ of
Habeas Corpus by a Person in State Custody herein. The
Petition purports to be directed at his 2014 conviction in
Los Angeles County Superior Court. Petitioner purports to
raise five grounds for relief.
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 for relief
presented in the petition. Rose v. Lundy, 455 U.S.
509, 518-22 (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). Under the
total exhaustion rule, if even one of the claims being
alleged by a habeas petitioner is unexhausted, the petition
must be dismissed. See Rose, 455 U.S. at 522;
see also Coleman v. Thompson, 501 U.S. 722, 731
(1991), modified by Martinez v. Ryan, 566 U.S. 1
(2012); Castille v. Peoples, 489 U.S. 346, 349
(1989). The Ninth Circuit has held that a federal court may
raise the failure to exhaust issue sua sponte.
See Stone v. City & Cnty. of San Francisco, 968
F.2d 850, 856 (9th Cir. 1992) (as amended).
requires that the petitioner's claims be fairly presented
to the state courts and be disposed of on the merits by the
highest court of the state. James v. Borg, 24 F.3d
20, 24 (9th Cir. 1994); Carothers v. Rhay, 594 F.2d
225, 228 (9th Cir. 1979); see also Libberton v.
Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). A claim has
not been fairly presented to a state court unless the
petitioner has described both the operative facts and the
federal legal theory on which the claim is based. Duncan
v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam);
Picard v. Connor, 404 U.S. 270, 275-78 (1971);
Greenway v. Schriro, 653 F.3d 790, 801 (9th Cir.
2011); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir.
1996). Petitioner has the burden of demonstrating that he has
exhausted his available state remedies. See, e.g.,
Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir.
1972) (per curiam). However, the Ninth Circuit has held that,
for purposes of exhaustion, pro se petitions are
held to a more lenient standard than counseled petitions.
Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003);
Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir.
2003) (en banc).
it appears from the face of the Petition that Petitioner did
not exhaust his state remedies with respect to any of his
grounds for relief. Petitioner did not list any California
Supreme Court filings in the habeas petition form. Indeed, in
response to the question on the form asking whether he filed
a Petition for Review with the California Supreme Court,
Petitioner checked the “No” box. Petitioner also
checked the “No” boxes in response to the
questions on the form asking whether he previously raised his
grounds for relief in a Petition for Review or habeas
petition to the California Supreme Court. Based on the
Court's review of the California Appellate Courts
website, however, it does appear Petitioner filed a Petition
for Review, which was denied on January 13, 2016.
assuming that Petitioner raised the same claims he raised in
his direct appeal, it appears that he did not raise any of
his current grounds for relief in the Petition for Review. In
his appeal, Petitioner claimed that the trial court committed
prejudicial error by failing to instruct the jury in
accordance with CALJIC Nos. 2.20 and 2.27; his conviction
should be reversed “due to trial court error (PC 273A
subdivision A)”; the trial court violated his
“constitutional rights to due process, present a
defense and fair trial”; and the trial court erred by
instructing the jury with CALJIC 2.04. (Pet. at 2-3.) By
contrast, in his Petition, Petitioner alleges: (i)
ineffective assistance of counsel; (ii) juror misconduct;
(iii) a conflict of interest; (iv) that the trial court
violated his due process rights by failing to “call for
a mistrial when notified of juror misconduct, ” and
allow exculpatory evidence and grounds for dismissal during
sentencing; and (v) admission of scientific testimony that
was fundamentally flawed. (Id. at 5-6.) Such claims
are factually and legally distinct from the claims raised in
Petitioner's appeal. As such, it appears that Petitioner
has not exhausted the grounds for relief in his Petition.
were clear that the California Supreme Court would hold that
Petitioner's claims were procedurally barred under state
law, then the exhaustion requirement would be satisfied.
See Castille, 489 U.S. 346 at 351-52;
Johnson, 88 F.3d at 831. Here, however, it is not
clear that the California Supreme Court will hold that
Petitioner's claims are procedurally barred under state
law. See, e.g., In re Harris, 5 Cal.4th
813, 824 (1993) (granting habeas relief where petitioner
claimed sentencing error, even though the alleged sentencing
error was raised and rejected on direct appeal); People
v. Sorensen, 111 Cal.App. 2d 404, 405 (1952) (noting
that claims that fundamental constitutional rights have been
violated may be raised by state habeas petition). The Court
therefore concludes that this is not an appropriate case for
invocation of either “exception” cited above to
the requirement that a petitioner's federal claims must
first be fairly presented to, and disposed of on the merits
by, the state's highest court.
Petitioner is ORDERED TO SHOW CAUSE in writing, if any he
has, why this action should not be summarily dismissed
without prejudice pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts for
failure to exhaust state remedies. By no later than May 3,
2017, Petitioner shall file a response to this Order. If
Petitioner contends that he has, in fact, exhausted some or
all of his claims, he must clearly explain the basis for this
contention, and provide any available competent evidence that
establishes exhaustion. If Petitioner concedes that some or
all of the grounds for relief are unexhausted, Petitioner may
voluntarily dismiss his unexhausted claims or request a
voluntarily dismissal of the action without prejudice if the
Petition is entirely unexhausted.
at the time Petitioner files his response, he also may
request a stay under Rhines v. Weber, 544 U.S. 269,
277-78 (2005) and/or Kelly v. Small, 315 F.3d 1063
(9th Cir. 2003) (as amended), overruled on other grounds
by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007).
However, to the extent the Petition is entirely unexhausted,
a stay under Kelly is unavailable. See King v.
Ryan, 564 F.3d 1133, 1139-40 (9th Cir. 2009). If
Petitioner requests a stay of the proceedings under
Rhines, Petitioner must show the following: (a) He
has good cause for failing to exhaust the unexhausted claims
in state court; (b) the unexhausted claims are potentially
meritorious and not “plainly meritless”; and (c)
he has not engaged in abusive litigation tactics or
intentional delay. See Rhines, 544 U.S. at 277-78.
Petitioner is cautioned that if he requests a stay under
Rhines or Kelly and the Court denies the
request for a stay, or if Petitioner contends that he has in
fact exhausted his state court remedies on all grounds and
the Court disagrees, the Court may recommend that the
Petition be dismissed. Petitioner may request a stay, and
include a notice that, if the Court denies the stay, he
alternatively requests a voluntary dismissal of the
unexhausted claims or the entire action without prejudice.
The clerk is directed to provide Petitioner a copy of the
Notice of Dismissal Form. However, there is a one-year
statute of limitations on habeas claims by a prisoner in
state custody. 28 U.S.C. § 2244(d). The limitations
period is tolled while a “properly filed”
application for state post-conviction or other collateral
review with respect to the pertinent judgment or claim is
pending, 28 U.S.C. § 2244(d)(2), but the limitations
period is not tolled under section 2244(d) while a petition
is pending in federal court. Duncan v. Walker, 533
U.S. 167, 172-75 (2001) (unlike the filing of a state habeas
petition, the filing of a federal habeas petition does not
toll the statute of limitations).
Court warns Petitioner that failure to timely file a response
to this Order may result in the Court dismissing this action
with prejudice as untimely and for failure to prosecute and
comply with Court orders. See Fed. R. Civ. P. 41(b).
Based on the Court's review
of the California Court of Appeal Opinion, Petitioner
alleged, in particular, that the trial court violated his
constitutional rights when it denied his motion for new trial
based on newly discovered evidence. See