United States District Court, C.D. California
Present: Honorable Sheri Pym, United States Magistrate Judge
CIVIL MINUTES - GENERAL
(In Chambers) Order to Show Cause Why First Amended Petition
Should Not Be Dismissed Due to Failure to Exhaust and Pending
11, 2017, petitioner Devon-Samuel James-Singleton Perkins
filed a First Amended Petition for Writ of Habeas Corpus by a
Person in State Custody under 28 U.S.C. § 2254 (the
“FAP”), following the court's dismissal of
his initial petition in this case with leave to amend. The
FAP corrects the deficiencies identified in the initial
petition, but it reveals others.
particular, it appears that the FAP is subject to dismissal
because, as indicated in the FAP, petitioner has not
exhausted his state remedies with respect to all the grounds
raised in his FAP. Further, petitioner states that a habeas
petition is currently pending before the California Supreme
Court for review, and that he has a pending petition for writ
of certiorari before the United States Supreme Court, either
of which could moot the instant FAP. The court will not make
a final determination regarding whether the FAP should be
dismissed, however, without giving petitioner an opportunity
to address these issues.
the court hereby issues this Order to Show Cause why the FAP
should not be dismissed, and specifically orders petitioner
to respond to the Order to Show Cause in writing by no later
than June 19, 2017. The court further directs petitioner to
review the information that follows, which provides
additional explanation as to why the FAP appears to be
subject to dismissal and may assist petitioner in determining
how to respond.
prisoner must exhaust his or her 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 or her 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 or her
claims in a petition to the California Supreme Court. See
O'Sullivan, 526 U.S. at 845 (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 has raised two purported grounds for relief
in the FAP: (1) the court imposed an illegal sentencing
enhancement; and (2) ineffective assistance of appellate
counsel in not appealing the enhancement. The FAP indicates
that ground one has been raised in a habeas petition to the
California Supreme Court that is still pending, and ground
two has never been raised before a state court. Because the
FAP indicates that neither of the grounds it raises have been
ruled on by the California Supreme Court, it appears neither
of the grounds raised have yet been exhausted. If this is
correct, the FAP is subject to dismissal.
even if the California Supreme Court rules on ground one, it
appears ground two will still be unexhausted. The inclusion
of both exhausted and unexhausted claims in a habeas petition
renders it mixed and subject to dismissal without prejudice.
See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct.
1198, 71 L.Ed.2d 379 (1982) (“In sum, because a total
exhaustion rule promotes comity and does not unreasonably
impair the prisoner's right to relief, we hold that a
district court must dismiss habeas petitions containing both
unexhausted and exhausted claims.”).
Pending That Could Moot FAP
noted, when a claim raised in a federal habeas petition is
still pending before a state court, the petitioner has not
met the exhaustion requirement because he has not given the
state court the first opportunity to address the federal
claim. See Duncan, 513 U.S. at 365. “If the
prisoner's claim is meritorious, and if the state remedy
is prompt and complete, there is no need to bring
post-conviction proceedings in federal courts.”
Sherwood v. Tomkins, 716 F.2d 632, 633 (9th Cir.
1983) (internal quotation marks and citation omitted).
a pending state appeal or petition renders a federal habeas
petition subject to dismissal even if the claim raised in the
federal petition is different from the issue raised in a
pending state appeal or petition. See Sherwood, 716
F.2d at 634 (“When . . . an appeal of a state criminal
conviction is pending, a would-be habeas corpus petitioner
must await the outcome of his appeal before his state
remedies are exhausted, even where the issue to be challenged
. . . has been finally settled in the state courts.”);
see also Schnepp v. Oregon, 333 F.2d 288, 288 (9th
Cir. 1964) (per curiam) (state remedies not exhausted where a
state post-conviction proceeding is pending). This is
because, “even if the federal constitutional question
raised by the habeas corpus petitioner cannot be resolved in
a pending state appeal, that appeal may result in the
reversal of the petitioner's conviction on some other
ground, thereby mooting the federal question.”
Sherwood, 716 F.2d at 634 (citing Davidson v.
Klinger, 411 F.2d 746, 747 (9th Cir. 1969) (per
the FAP states petitioner currently has a pending petition
for certiorari before the United States Supreme Court, and a
pending habeas petition before the California Supreme Court.
The court has verified that the California Courts' online
Appeal Courts Case Information shows at least that petitioner
has a pending habeas corpus proceeding in case number
S241760. If petitioner retains a pending state action which
may moot or otherwise affect his alleged constitutional
claims before this Court, he must await the outcome of that
action before presenting his claims in federal court, and
thus the FAP would be ...