United States District Court, C.D. California, Western Division
ORDER TO SHOW CAUSE RE: DISMISSAL OF HABEAS
L. ABRAMS UNITED STATES MAGISTRATE JUDGE
Wayne Foster, Jr., (“petitioner”) initiated this
action on April 4, 2018, by filing a document entitled
“Notice of Appeal, ” which the Court has
construed as a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 (“Petition”). It appears that
petitioner is currently in custody pursuant to a California
state court conviction in case number NA081482 and is housed
at California State Prison, Los Angeles County in Lancaster,
California. (Petition at 1, 12). Petitioner in the instant
Petition appears to challenge the Los Angeles County Superior
Court's denial of his motion for resentencing.
Specifically, petitioner states that he “appeals from
the judgment of the court denying [his] motion for
resentencing[/]sentencing modification . . . without
prejudice. Said judgment was entered on 02/27/18 by the
[H]onorable Judge Gary J. Ferrari, a Superior Court of
California, County of Los Angeles Judge.” (Petition at
Court notes that, in 2015, in Case No. CV 15-2826-JGB (JCG),
petitioner filed a prior habeas petition challenging his
conviction in case number NA081482 (the “2015
Petition”). In the 2015 Petition, petitioner stated
that he was convicted on October 19, 2009, in the Los Angeles
County Superior Court of one count of first degree burglary
(Cal. Penal Code § 459), and was sentenced to
thirty-five years to life. (Case No. CV 15-2826, ECF No. 1 at
1). He raised claims of ineffective assistance of counsel,
instructional error, and prosecutorial misconduct. The 2015
Petition was denied as barred by the statute of limitations,
and on July 6, 2015, judgment was entered dismissing the 2015
Petition with prejudice. (Case No. CV 15-2826, ECF Nos. 5,
instant Petition, petitioner challenges the superior
court's denial of his motion for resentencing by alleging
that the superior court, in sentencing petitioner to
thirty-five years to life under the Three Strikes Law,
violated California Penal § Code 667(a)(2), California
Rule of Court 425(b), and the due process clauses of the
Fifth and Fourteenth Amendments. (Petition at 3).
matter of comity, a federal court will not entertain a habeas
corpus petition unless the petitioner has exhausted the
available state judicial remedies on every federal claim
presented in the petition. Rose v. Lundy, 455 U.S.
509, 518-22, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The
habeas statute explicitly provides that a habeas petition
brought by a person in state custody “shall not be
granted unless it appears that -- (A) the applicant has
exhausted the remedies available in the courts of the State;
or (B)(i) there is an absence of available State corrective
process; or (ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.” 28
U.S.C. § 2254(b)(1).
requires that petitioner's contentions be fairly
presented to the state supreme court even if that court's
review is discretionary. O'Sullivan v. Boerckel,
526 U.S. 838, 845-47, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999);
James v. Giles, 221 F.3d 1074, 1077, n.3 (9th Cir.
2000). Petitioner must give the state courts “one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process” in order to exhaust his claims.
O'Sullivan, 526 U.S. at 845. A claim has not
been fairly presented unless the prisoner has described in
the state court proceedings both the operative facts and the
federal legal theory on which his claim is based. See
Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887,
130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S.
270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Johnson
v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996); Bland v.
Cal. Dep't of Corr., 20 F.3d 1469, 1473 (9th Cir.
1994), overruled on other grounds by Schell v.
Witek, 218 F.3d 1017 (9th Cir. 2000). Petitioner has the
burden of demonstrating that he has exhausted available state
remedies. See, e.g., Brown v.
Cuyler, 669 F.2d 155, 158 (3d Cir. 1982).
there is no indication that petitioner has exhausted any
claim he raises in the instant Petition. Accordingly, the
Petition is subject to being dismissed without prejudice as
unexhausted. Greenawalt v. Stewart, 105 F.3d 1268,
1271, 1273-75 (9th Cir. 1997).
SECOND OR SUCCESSIVE PETITIONS
federal habeas petition is successive if it raises claims
that were or could have been adjudicated on the merits in a
previous petition. Cooper v. Calderon, 274 F.3d
1270, 1273 (9th Cir. 2001) (per curiam). The AEDPA
provides that a claim presented in a second or successive
federal habeas petition that was not presented in a prior
petition shall be dismissed unless:
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would ...