United States District Court, E.D. California
ORDER TO SHOW CAUSE WHY MOTION TO STAY SHOULD BE
GRANTED (DOC. 2)
MICHAEL J. SENG, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner challenges an August 6, 2013
conviction from the Kern County Superior Court for two counts
of second degree murder, two counts of gross vehicular
manslaughter while intoxicated, and driving with a suspended
license. (Pet., ECF No. 1.) In his petition, Petitioner
presents five claims for relief including claims for
insufficient evidence, instructional error, violation of the
Fourth Amendment, improper admission of evidence, and
sentencing error. (See Pet.)
filed the instant petition on March 8, 2017. (Pet.) On the
same date, Petitioner filed a motion to stay the petition.
(Mot. to Stay, ECF No. 2.) In the motion, Petitioner states
that he desires to raise additional federal grounds that had
not been raised or exhausted in state court. (Id.)
However, Petitioner has not provided further explanation as
to which claims are unexhausted or as to his efforts to seek
exhaustion of those claims in state court. (Id.)
Exhaustion of State Remedies
exhaustion of available state remedies is a prerequisite to a
federal court's consideration of claims presented in
habeas corpus proceedings. See Rose v. Lundy, 455
U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); 28 U.S.C.
§ 2254(b). 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); Picard v. Connor, 404 U.S. 270, 276
(1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir.
1996). Additionally, the petitioner must have specifically
told the state court that he was raising a federal
constitutional claim. Duncan, 513 U.S. at 365-66;
Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir.2000),
amended, 247 F.3d 904 (2001). 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, 232 F.3d at 668-669 (italics added).