United States District Court, C.D. California
ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE
DISMISSED AS UNEXHAUSTED
FREDERICK F. MUMM UNITED STATES MAGISTRATE JUDGE
a prisoner in state custody proceeding pro se,
constructively filed a Petition for Writ of Habeas Corpus
("Petition" or "Pet.") on or about April
23, 2018. Petitioner challenges a 1993 conviction and
FAILURE TO EXHAUST
The Court may not consider a petition that includes
the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), a federal court will not grant a state
prisoner's petition for writ of habeas corpus unless it
appears that the petitioner has fully exhausted available
state court remedies with respect to each of the issues
presented, or, unlike the instant case, the state has
expressly waived the exhaustion issue. See 28 U.S.C.
§§ 2254(b), (c); see also O'Sullivan v.
Boerckel, 526 U.S. 838, 839, 119 S.Ct. 1728, 144 L.Ed.2d
1 (1999); Rose v. Lundy, 455 U.S. 509, 522, 102
S.Ct. 1198, 71 L.Ed.2d 379 (1982); Duncan v. Henry,
513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995)
(per curiam). State remedies have been exhausted if
a petitioner has "fairly presented" each federal
claim to the highest state court with jurisdiction to review
it, and a claim has been "fairly presented" if a
petitioner has set forth both the operative facts and the
federal legal theory on which the claim is based. See,
e.g., Duncan, 513 U.S. at 365-66; Anderson v.
Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3
(1982); Picardv. Connor, 404 U.S. 270, 275, 92 S.Ct.
509, 30 L.Ed.2d 438 (1971). Thus, "for purposes of
exhausting state remedies, a claim for relief in habeas
corpus must include reference to a specific federal
constitutional guarantee, as well as a statement of the facts
that entitle the petitioner to relief." Gray v.
Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 135
L.Ed.2d 457 (1996); Davis v. Silva, 511 F.3d 1005,
1009 (9th Cir. 2008). A petitioner may also alert the state
court to the federal basis of his claim by citing "a
case deciding such a claim on federal grounds . . . ."
Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347,
158 L.Ed.2d 64 (2004); Davis, 511 F.3d at 1011.
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). However, the
Ninth Circuit has held that, for purposes of exhaustion,
pro se petitions are held to a more lenient standard
than counseled petitions. See Sanders v. Ryder, 342
F.3d 991, 999 (9th Cir. 2003); Peterson v. Lampert,
319 F.3d 1153, 1159 (9th Cir. 2003).
The Petition appears to be unexhausted.
has failed to demonstrate that he has presented the current
claims to state court, since the only appeals that appear on
record appear to be unrelated to the claims he presents in
this habeas petition, based on the recent passage and
implementation of California Proposition 57.
Neither exception to the exhaustion requirement is
provides that the Court may consider an unexhausted claim if
"there is an absence of available State corrective
process; or . . . circumstances exist that render such
process ineffective to protect the rights of the
applicant." 28 U.S.C. § 2254(b)(1)(B)(i)-(ii).
Thus, if it were clear here that petitioner's unexhausted
claim was procedurally barred under state law, then the
exhaustion requirement would be satisfied. See Castille
v. Peoples, 489 U.S. 346, 351-52, 109 S.Ct. 1056, 103
L.Ed.2d 380 (1989); Johnson v. Zenon, 88 F.3d 828,
831 (9th Cir. 1996). However, it is not "clear"
here that the California Supreme Court would hold that
petitioner's unexhausted claim is procedurally barred
under state law, if petitioner were to raise it in a habeas
petition to the California Supreme Court (which, being an
original proceeding, is not subject to the same timeliness
requirement as a petition for review of a California Court of
Appeal decision). See, e.g., In re Harris, 5 Cal.4th
813, 825 (1993) (granting habeas relief where petitioner
claimed sentencing error, even though the alleged sentencing
error could have been raised on direct appeal); People v.
Sorensen, 111 Cal.App. 2d 404, 405 (1952) (noting that
claims that fundamental constitutional rights have been
violated may be raised by state habeas petition). The Court
therefore concludes that there is neither an absence of
available state corrective process nor an existence of
circumstances that render such process ineffective.
ORDER TO SHOW CAUSE
Court orders petitioner to show cause in writing within 15
days of the date of this order why the Petition should not be
dismissed for failure to exhaust. If available, petitioner
should include a copy of his petition for review to the
California Supreme Court with his response to this order.
petitioner fails to provide a timely response to this order,
the Court will recommend that the Petition be dismissed