United States District Court, C.D. California, Western Division
ORDER TO SHOW RE: DISMISSAL OF HABEAS
L. ABRAMS UNITED STATES MAGISTRATE JUDGE
Shannon Brown (“petitioner”) initiated this
action on April 30, 2018, by filing a Petition for Writ of
Habeas Corpus by a Person in State Custody pursuant to 28
U.S.C. § 2254 (“Petition”). Petitioner
states in the Petition that he was convicted on July 10,
2015, in the Santa Barbara County Superior Court, after
pleading nolo contendere to a violation of California Penal
Code § 22210, and that he was sentenced on December 6,
2017, to “3 years for possession of [a] deadly weapon,
[and] 5 years for every prison prior.” (Petition at
He states that he did not appeal his conviction, but that in
February 2018, he filed a habeas petition challenging his
sentence in the Santa Barbara County Superior Court. It
appears that the superior court habeas petition is still
pending. (Petition at 2-4). In the instant Petition,
petitioner raises five claims seeking sentencing relief under
California's Proposition 47.
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).
petitioner states that he did not file a direct appeal, and
has only filed a state habeas petition in the Santa Barbara
County Superior Court. Accordingly, there is no indication
that petitioner has exhausted any claim he raises in the
instant Petition by presenting that claim to the California
Supreme Court. The Petition is therefore subject to being
dismissed without prejudice as wholly unexhausted.
Greenawalt v. Stewart, 105 F.3d 1268, 1271, 1273-75
(9th Cir. 1997).
CLAIMS UNDER PROPOSITION 47 ARE NOT COGNIZABLE
petitioner may seek federal habeas relief from a state court
conviction or sentence if he is contending that he is in
custody in violation of the Constitution or laws or treaties
of the United States. See 28 U.S.C. § 2254(a);
Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct.
859, 178 L.Ed.2d 732 (2011) (per curiam); Estelle v.
McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d
385 (1991). Matters relating solely to the interpretation
and/or application of state law generally are not cognizable
on federal habeas review. See, e.g.,
Rhoades v. Henry, 611 F.3d 1133, 1142 (9th Cir.
2010) (“violations of state law are not cognizable on
federal habeas review”); Christian v. Rhode,
41 F.3d 461, 469 (9th Cir. 1994) (“Absent a showing of
fundamental unfairness, a state court's misapplication of
its own sentencing laws does not justify federal habeas
petitioner seeks habeas relief on the grounds that he is
entitled to a reduced sentence pursuant to Proposition 47.
(Petition at 5-6). Because such claims only involve the
application of state law, the claims are not cognizable in
this habeas action. See McKinney v. Pfeiffer, 2017
WL 1078441, at *4 (C.D. Cal. Jan. 11, 2017) (“[T]o the
extent petitioner is challenging the superior court's
denial of his application to reduce one of his convictions to
a misdemeanor pursuant to Proposition 47, such claims are not
cognizable on federal habeas review.”), Report and
Recommendation accepted, 2017 WL 1073340 (C.D. Cal. Mar.
21, 2017); Adams v. Borders, 2016 WL 4523163, at *3
(C.D. Cal. July 29, 2016) (habeas claim pursuant to
Proposition 47 not cognizable), Report and Recommendation
adopted, 2016 WL 4520906 (C.D. Cal. Aug. 29, 2016).
light of the foregoing, no later than May 25,
2018, petitioner must submit to the Court a response
making clear his arguments, if any, as to why the Petition
should not be dismissed (1) for lack of exhaustion, and/or
(2) as not cognizable. All facts relied upon by petitioner
must be proved by testimony contained in a declaration signed
under penalty of perjury pursuant to 28 U.S.C. § 1746,
or in properly authenticated documents. With respect to the
exhaustion issue, petitioner must file proof with this Court
on or before May 25, 2018, that each claim for relief set
forth in the instant Petition has previously been presented
to the California Supreme Court, by providing this
Court with a complete copy of either the petition for review
or state habeas petition raising each of those claims to the
California Supreme Court.
if petitioner agrees that the Petition should be dismissed
without prejudice for any of the reasons discussed above, he
may file a notice of voluntary dismissal pursuant to Federal
Rule of Civil Procedure 41(a)(1) (“Rule 41”).
Rule 41 allows for the voluntary dismissal of an action by a
petitioner without prejudice and without a court
order before the opposing party serves either an answer or a
motion for summary judgment. Fed.R.Civ.P. 41(a)(1);
Hamilton v. Shearson-Lehman Am. Express, Inc., 813
F.2d 1532, 1534 (9th Cir. 1987). Respondent has not yet
appeared in this action. The Court clerk is directed to send
petitioner a copy of a blank Central District form titled
“Notice of Dismissal Pursuant to Federal Rules of Civil
Procedure 41(a) or (c)” along with this Order to Show
to respond by May 25, 2018, will result in the Petition being
summarily dismissed for the reasons set forth above, and for