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Thompson v. Muniz

United States District Court, C.D. California

November 21, 2017

Matthew Thompson
v.
William Muniz, Warden

          PRESENT: SHASHI H. KEWALRAMANI, UNITED STATES MAGISTRATE JUDGE

          CIVIL MINUTES-GENERAL

         Proceedings: (In Chambers) Order to Show Cause Why Petition Should Not Be Dismissed Due to Failure to Exhaust

         I. INTRODUCTION

         On June 9, 2017, Petitioner Matthew Thompson (“Mr. Thompson”) constructively filed[1]a Petition for Writ of Habeas Corpus, under 28 U.S.C. § 2254 (the “Petition”). For the reasons set forth below, the Court finds the Court may be required to dismiss the Petition because Mr. Thompson has not exhausted his state court remedies. This is because it does not appear that he appealed his denials of state habeas relief from the California Court of Appeal to the California Supreme Court. The Court will not make a final determination regarding whether the Petition should be dismissed, however, without giving Mr. Thompson an opportunity to address these issues and to show whether he has appealed his writs of habeas corpus from the California Court of Appeal to the California Supreme Court.

         II. BACKGROUND

         In his Petition, Mr. Thompson challenges his conviction of second degree murder, two counts of attempted murder, one count of shooting at an occupied building, and a gang sentence enhancement under California Penal Code section 186.22. Electronic Case Filing Number (“ECF No.”) 1 at 10, 12. Mr. Thompson was sentenced to 140-years to life, however, on September 3, 2015, the California Court of Appeals affirmed the convictions but ordered that Mr. Thompson be resentenced to ninety-four years-to-life. Id. at 12.

         Mr. Thompson raises five grounds for relief in his Petition. Id. at 7-11. First, he argues that the denial of his severance motion was reversible error “amounting to a denial of due process.” Id. at 7. Second, he appears to argue that the trial court erred in permitting hearsay testimony during his trial. Id. at 8. Third, he argues that the trial court erred in not granting his request for a new trial. Id. at 9. Fourth, in light of recent California case law, he argues that there was insufficient evidence to apply the sentencing enhancement under California Penal Code section 186.22. Id. at 10. Finally, he argues that the trial court committed instructional error when it instructed the jury under the natural and probable consequences theory of aiding and abetting for first degree murder when the alleged first degree murder was not reasonably foreseeable. Id. at 11.

         Mr. Thompson claims that he raised the same issues presented here as in his petition for habeas corpus to the California Superior Court. Id. at 6. On February 2, 2017, the California Superior Court denied his petition for habeas corpus because he failed to “establish entitlement to relief by a preponderance of the evidence” and because the trial court correctly applied the gang sentence enhancement “based on the facts recited in the appellate opinion, [that Mr. Thompson] self-identified” as a gang member. Id. at 12-13. On March 6, 2017, Mr. Thompson filed a petition for habeas corpus in the California Court of Appeals, which was denied on March 15, 2017 (Court of Appeal Case No. B281088). Id. at 38. According to the California Court of Appeal's website, Mr. Thompson filed a petition for habeas corpus in the California Court of Appeals on June 5, 2017 (Court of Appeal Case No. B282919), which was denied on June 12, 2017.[2]

         III. THE PETITION IS UNEXHAUSTED AND SUBJECT TO DISMISSAL

         A state 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 (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 (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.

         For a 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. 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.” Id. at 888.

         Here, there is no indication that Mr. Thompson petitioned the California Supreme Court. Accordingly, at this time, Mr. Thompson's Petition appears to be unexhausted and subject to dismissal.

         IV. ORDER

         Mr. Thompson 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 December 21, 2017. Mr. Thompson must ...


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