United States District Court, C.D. California
Present: The Honorable KENLY KIYA KATO, UNITED STATES
(In Chambers) Order To Show Cause Why This Action Should Not
Be Dismissed For Failure To Exhaust And Failure To Name
20, 2017, Petitioner Richard Raymond Martinez
("Petitioner"), an inmate at Ironwood State Prison,
proceeding pro se, constructively
filed a Petition pursuant to 28 U.S.C. §
2254 ("Petition") naming the Secretary of
Corrections of CDCR as the Respondent. See ECF Docket No.
("dkt.") 1, Petition. Petitioner challenges his
2014 convictions in the Los Angeles County Superior Court for
aggravated sexual assault of a child, sodomy, rape, oral
copulation, sexual penetration, forcible lewd act on a child,
and prior convictions. Id. at 2. The Petition sets
forth five grounds for habeas relief: (1) ineffective
assistance of trial counsel ("Claim One"); (2)
ineffective assistance of appellate counsel ("Claim
Two"); (3) insufficient evidence ("Claim
Three"); (4) admission of prior crimes evidence deprived
Petitioner of his rights to due process ("Claim
Four"); and (5) violation of Petitioner's due
process right to confront witnesses ("Claim Five").
See Id. Petitioner acknowledges Claims One and Two
are currently pending before the California Supreme Court for
the first time in Petitioner's state habeas petition
filed concurrently with the instant federal Petition. See id.
the Petition appears subject to dismissal because, (a) as
indicated in the Petition, Petitioner has not exhausted his
state remedies with respect to Claims One and Two; and (b)
Petitioner has not named his immediate custodian as a
respondent. The Court will not make a final determination
regarding whether the federal Petition should be dismissed,
however, without giving Petitioner an opportunity to address
the Court hereby issues this Order to Show Cause why the
Petition should not be dismissed, and specifically orders
Petitioner to respond to the Order to Show Cause in writing
no later than July 28, 2017. The Court
further directs Petitioner to review the information that
follows, which provides additional explanation as to why the
federal Petition appears to be subject to dismissal and may
assist Petitioner in determining how to respond.
THE PETITION IS A MIXED PETITION SUBJECT TO
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
petitioner'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
the petitioner must have fairly presented his or her 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." Gathn, 189 F.3d at 888.
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.").
Petitioner concedes Claims One and Two were only presented to
the California Supreme Court for the first time in a state
habeas petition filed concurrently with the instant federal
Petition. Pet. at 21-22. Therefore, it appears the California
Supreme Court has not ruled on Claims One or Two, and thus
those claims have not been exhausted. If this is correct, the
Petition is a mixed petition and subject to dismissal without
prejudice. See Rose, 455 U.S. at 522.
THE PETITION FAILS TO NAME A PROPER
[T]he proper respondent to a habeas petition is the person
who has custody over the petitioner." Rumsfeld v.
Padilla, 542 U.S. 426, 434, 124 S.Ct. 2711, 159 L.Ed.2d
513 (2004) (internal quotation marks and brackets omitted).
Thus, "the default rule is that the proper respondent is
the warden of the facility where the prisoner is being
held." Id. at 435; Stanley v. California
Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (as
amended May 18, 1994) (holding the proper respondent in a
habeas action is "typically... the warden of the
facility in which the petitioner is incarcerated");
Brittingham v. United States, 982 F.2d 378, 379 (9th
Cir. 1992) (per curiam). The Ninth Circuit has held that the
" [f]ailure to name the correct respondent destroys
personal jurisdiction." Ortiz-Sandoval v.
Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (as amended May
the Petition improperly names "Secretary of Corrections
CDCR" as Respondent. See Pet. Accordingly, the
Petition is ...