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.
petitioner (“Petitioner”), a prisoner in state
custody proceeding pro se, filed a Petition for Writ
of Habeas Corpus (“Petition”) on or about August
7, 2019. Petitioner challenges a 2014 conviction and sentence
entered in the Superior Court of Los Angeles County.
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. 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); Picard v. 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.
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).
Petitioner has failed to demonstrate that his claims are
current Petition presents four grounds for relief. However,
Petitioner has failed to demonstrate that he has presented
any of the current claims to state court. Although Petitioner
attached to his habeas petition here the cover page of his
habeas petition filed in the Supreme Court of California on
November 26, 2018 (Docket No. 1, p. 58), and the April 24,
2019, order of the Supreme Court of California denying the
habeas petition (Docket No. 1, p. 59), neither
Petitioner's current habeas petition nor the California
Courts' website indicates what issues Petitioner raised
in his habeas petition before the Supreme Court of
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 potentially
unexhausted claims were 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 claims are procedurally
barred under state law, if Petitioner were to raise them in a
habeas petition to the Supreme Court of California (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 complete copy of his petition for review to
the Supreme Court of California with his response to this
Petitioner fails to provide a timely response to this order,
the Court will recommend that the Petition be dismissed