United States District Court, C.D. California
Robert H. Dunlap
Present: Honorable: KarenL. Stevenson, United States
CIVIL MINUTES - GENERAL
(IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL
September 23, 2019, Robert H. Dunlap
("Petitioner"), a state prisoner proceeding pro
se, filed a Petition for Writ of Habeas Corpus
("Petition") pursuant to 28 U.S.C. § 2254.
(Dkt. No. 1.) The Petition presents two grounds for habeas
relief: (1) Petitioner received an unauthorized sentence in
light of Proposition 36; and (2) Petitioner received an
unauthorized sentence in light of ex post facto legislation,
California Senate Bill SB-1437. (Petition at 6, 8.) The
Petition indicates that Petitioner has not presented either
of these claims to any state court. (See generally
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 ground presented
in the petition. Rose v. Lundy, 455 U.S. 509, 518-22
(1982). Accordingly, 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).
satisfy the federal habeas statute's exhaustion
requirement, a state prisoner must "fairly present"
his federal claim to the state courts, that is, give them a
fair opportunity to consider and correct violations of the
prisoner's federal rights. See Duncan v. Henry,
513 U.S. 364, 365 (1995); Peterson v. Lampert, 319
F.3d 1153, 1155-56 (9th Cir. 2003) (en banc). A state
prisoner who, like Petitioner, is seeking relief with respect
to a California conviction is required to "fairly
present" his federal claims to the California Supreme
Court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004)
(a state prisoner must fairly present his claim to a state
supreme court having the power of discretionary review);
Keating v. Hood, 133 F.3d 1240, 1242 (9th Cir.
1998). Here, however, it appears that Petitioner has not
presented his claims to the state supreme court, and,
consequently, the Petition is subject to dismissal for
failure to state a claim upon which relief may be granted.
See Rose, 455 U.S. at 510, 521; see also 28
U.S.C. § 2243 (if it "appears from the application
that the applicant or person detained is not entitled"
to habeas relief, a court may dismiss the action without
ordering service on the requested party); Rule 4, Rules
Governing Section 2254 cases in the United States District
Courts (petition may be summarily dismissed if petitioner
plainly not entitled to relief); Local Rule 72-3.2.
light of the foregoing, and in the interests of justice,
Petitioner is ORDERED TO SHOW CAUSE no later than
October 17, 2019 why the Petition should not be
dismissed as a wholly unexhausted petition. To discharge this
Order, Petitioner shall file one of the following no later
than the October 17, 2019 deadline:
(1) a Response to this Order that establishes that the
exhaustion process is complete - that is, that the California
Supreme Court has considered and adjudicated Petitioner's
claims for relief, either on direct appeal or habeas review;
(2) a signed document entitled Notice of Voluntary
(3) a request for a stay pursuant to Rhines v.
Weber, 544 U.S. 269 (2005) that establishes all
three of the following: (i) there is "good
cause" for Petitioner's failure to exhaust his
claims for relief; (ii) the unexhausted claims are
"potentially meritorious;" and (iii) Petitioner has
not engaged in "intentionally dilatory litigation
tactics." Rhines, 544 U.S. at 277-78; see
also Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016)
("a district court has the discretion to stay and hold
in abeyance fully unexhausted petitions under the
circumstances set forth in Rhines"); Dixon v.
Baker, 847 F.3d 714, 721-22 (9th Cir. 2017) (discussing
the good cause standard for a Rhines stay).
may also choose to state in his Response "I wish to
receive a Rhines stay but, if my request for a
Rhines stay is denied, then I wish to voluntarily
dismiss this action pursuant to Fed.R.Civ.P. 41(a)(1)
instead." However, this statement is not, without more,
a sufficient basis for a Rhines stay Any request for
a Rhines stay must satisfy the three part standard
set forth above.
Petitioner fails to file a response that complies with this
Order by the October 17, 2019 deadline, the Court will
recommend dismissal of this case without prejudice.