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
April 21, 2017, petitioner Gregory DeVault
(“Petitioner”) filed a Petition for Writ of
Habeas Corpus by a Person in State Custody under 28 U.S.C.
§ 2254 (the “Petition”). Petitioner
challenges his 2016 conviction in Los Angeles Superior Court
for bringing a controlled substance into prison in violation
of Section 4573 of the California Penal Code. This Court,
having reviewed the Petition, finds the Petition is subject
to dismissal because Petitioner has not exhausted his state
remedies with respect to the ground raised in the Petition.
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 PETITION IS A WHOLLY UNEXHAUSTED PETITION SUBJECT TO
prisoner must exhaust his state court remedies before a
federal court may consider granting habeas corpus 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, Petitioner raises one ground for relief. Pet. at 6.
Petitioner seeks to “be relieved of the (1) one year
prior prison enhancement” because his “primary
offense is a nonviolent offense, ” and
“Proposition 57 states non-violent offense[s] will not
be sentenced with [an] enhancement.” Id.
Petitioner, however, concedes he never raised his claim on
direct appeal, nor has he filed any other petitions related
to this claim. Id. at 3-4. Accordingly, it appears
Petitioner's claim has not been ruled on by the
California Supreme Court. Thus, the Petition is a wholly
unexhausted petition subject to dismissal.
is therefore ORDERED TO SHOW CAUSE why the Petition should
not be dismissed for failure to exhaust state remedies by
filing a written response no later than May 26, 2017.
Petitioner must respond to this Order pursuant to one of the
options listed below.
1 - Petitioner May Explain The Petition Is
Exhausted: If Petitioner contends he has, in
fact, exhausted his state court remedies on the grounds
raised in his Petition, he should clearly explain this in a
written response to this Order to Show Cause. Petitioner
should attach to his response copies of any documents
establishing that grounds one through five are indeed
2 - Petitioner May Request A Rhines Stay: Under
Rhines v. Weber, 544 U.S. 269, 161 L.Ed.2d 440, 161
L.Ed.2d 440 (2005), a district court has discretion to stay a
petition to allow a petitioner time to present his
unexhausted claims to state courts. Id. at 276;
Mena v. Long, No. 14-55102, (9th Cir. Feb. 17, 2016)
(holding the Rhines stay-and-abeyance procedure
applies to both mixed and fully unexhausted habeas
petitions). This stay and abeyance procedure is called a
“Rhines stay” and is available only
when: (1) there is “good cause” for the failure
to exhaust; (2) the unexhausted claims are not “plainly
meritless”; and (3) the petitioner did not
intentionally engage in dilatory litigation tactics.
Rhines, 544 U.S. at 277-78.
may file a motion for a Rhines stay and support his
request by showing: (1) there is “good cause” for
the failure to exhaust; (2) the grounds raised are not
“plainly meritless”; and (3) Petitioner did not
intentionally engage in dilatory litigation tactics. See