United States District Court, E.D. California
DANIEL J. LANDA, Petitioner,
PEOPLE OF THE STATE OF CALIFORNIA, Respondent.
ORDER TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE
DISMISSED FOR PETITIONER'S FAILURE TO EXHAUST STATE
REMEDIES (ECF NO. 1) THIRTY (30) DAY DEADLINE
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 a December 27, 2016 conviction from the
Kern County Superior Court. (Pet., ECF No. 1.) In his
petition, Petitioner states that his notice of appeal, filed
in the Kern County Superior Court, was rejected as untimely
on April 10, 2017. (ECF No. 1 at 8.) Petitioner does not
state whether he has pursued any other review of his
conviction or presented his claims to the California Supreme
of the Rules Governing § 2254 Cases requires the Court
to make a preliminary review of each petition for writ of
habeas corpus. The Court must dismiss a petition "[i]f
it plainly appears from the petition . . . that the
petitioner is not entitled to relief." Rule 4 of the
Rules Governing § 2254 Cases; Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990). Otherwise, the
Court will order Respondent to respond to the petition. Rule
5 of the Rules Governing § 2254 Cases.
petitioner who is in state custody and wishes to collaterally
challenge his conviction by a petition for writ of habeas
corpus must exhaust state judicial remedies. 28 U.S.C. §
2254(b)(1). 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);
Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir.
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). A federal court will find that the highest state court
was given a full and fair opportunity to hear a claim if the
petitioner has presented the highest state court with the
claim's factual and legal basis. Duncan, 513
U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes,
504 U.S. 1, 9 (1992) (factual basis).
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); Hiivala v. Wood, 195 F.3d 1098,
1106 (9th Cir.1999); Keating v. Hood, 133 F.3d 1240,
1241 (9th Cir.1998). 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 present" 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 v. Crawford, 232 F.3d 666, 668-669 (9th Cir.
review of the instant petition for writ of habeas corpus, it
appears that Petitioner has not presented his claims to the
highest state court, the California Supreme Court. Petitioner
must inform the Court if, in fact, his claims have been
presented to the California Supreme Court, and if possible,
provide the Court with a copy of the petition filed in the
California Supreme Court along with a copy of any ruling made
by the California Supreme Court. Without knowing what claims,
if any, have been presented to the California Supreme Court,
the Court is unable to proceed to the merits of the petition.
28 U.S.C. § 2254(b)(1).
Petitioner is ORDERED TO SHOW CAUSE why the petition should
not be dismissed for Petitioner's failure to exhaust
state remedies. Petitioner is ORDERED to inform the Court
what claims have been presented to the California Supreme