United States District Court, E.D. California
ORDER TO SHOW CAUSE ECF NO. 1
DeMarrea McCoy-Gordon, a state prisoner without counsel,
seeks a writ of habeas corpus under 28 U.S.C. §
2254. ECF No. 1. Petitioner was convicted of
possessing and transporting a controlled substance. See
id. at 2. Petitioner challenges the findings of a rules
violation report that found him guilty of battery on a peace
officer and extended his incarceration by eight months.
See id. at 3. Petitioner sought first-, second-, and
third-level reviews of the rules violation report through the
California Department of Corrections and Rehabilitation and
was unsuccessful at all levels. See id. at 7.
Petitioner has not stated that he sought any state-level
judicial review of his claims before filing the instant
petition, and he has provided no proof of any such
proceedings. I order petitioner to show cause why his
petition should not be dismissed for failure to exhaust his
claims at the state level.
matter is before the court for preliminary review under Rule
4 of the Rules Governing Section 2254 Cases. Under Rule 4,
the judge assigned to a habeas proceeding must examine the
habeas petition and order a response thereto unless it
“plainly appears” that the petitioner is not
entitled to relief. See Valdez v. Montgomery, 918
F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147
F.3d 1124, 1127 (9th Cir. 1998). Unlike a complaint in other
civil cases, a Section 2254 petition must include a form
prescribed by the Rules Governing Section 2254 Cases.
See R. Governing Section 2254 Cases, Rule 2(d). This
form prompts a habeas petitioner to provide answers
pertaining to various procedural matters, such as procedural
default and exhaustion. Petitioner must use this form in any
future amended petitions and should be aware that the court
may dismiss claims at screening for procedural defects.
See Boyd, 147 F.3d at 1128.
appears that petitioner has not sought any remedy in state
court. ECF No. 1 at 5. If so, this amounts to a failure to
exhaust his claims. See 28 U.S.C. §
2254(b)(1)(A); Murray v. Schriro, 882 F.3d 778, 807
(9th Cir. 2018). If petitioner is currently pursuing relief
in state court-and I have no indication that he is-the
existence of such a parallel proceeding would warrant the
court's abstinence from considering this case to allow
state courts the first opportunity to address
petitioner's claims. See Younger v. Harris, 401
U.S. 37 (1971); Colorado River Water Conservation Dist.
v. United States, 424 U.S. 800, 817 (1976). The
exhaustion doctrine is based on comity; it gives the state
court the initial opportunity to correct the state's
alleged constitutional deprivations. See Coleman v.
Thompson, 501 U.S. 722, 731 (1991); Rose v.
Lundy, 455 U.S. 509, 518 (1982). A petitioner can
satisfy the exhaustion requirement by providing the highest
state court with a full and fair opportunity to consider each
claim before presenting it to the federal court.
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); Duncan v. Henry, 513 U.S. 364, 365 (1995);
Picard v. Connor, 404 U.S. 270, 276 (1971).
Accordingly, petitioner may move to withdraw his entire
petition and return to federal court when he has exhausted
his state court remedies.
petitioner may move to stay and hold in abeyance the petition
while he exhausts his claims in state court. See Rhines
v. Weber, 544 U.S. 269, 277 (2005); Kelly v.
Small, 315 F.3d 1063, 1070-71 (9th Cir. 2002). Under
Rhines, “stay and abeyance” is available
only when: (1) there is “good cause” for the
failure to exhaust; (2) the unexhausted claims are not
“plainly meritless”; and (3) the petitioner did
not intentionally engage in dilatory litigation tactics. 544
U.S. at 277-78. Under Kelly, a three-step procedure
is used: (1) the petitioner amends his petition to delete any
unexhausted claims; (2) the court in its discretion stays the
amended, fully exhausted petition, and holds it in abeyance
while the petitioner has the opportunity to proceed to state
court to exhaust the deleted claims; and (3) once the claims
have been exhausted in state court, the petitioner may return
to federal court and amend his federal petition to include
the newly-exhausted claims. Kelly, 315 F.3d at
1070-71 (citing Calderon v. U.S. Dist. Court
(Taylor), 134 F.3d 981, 986 (9th Cir.
1. The clerk's office must send petitioner a Section 2254
2. Within thirty days from the date of service of this order,
petitioner must show cause as to why his petition should not
be dismissed for failure to exhaust state remedies.
3. Plaintiff's failure to comply with this order may
result in the dismissal of this action.
 Although petitioner has filed his
claim on a California state habeas corpus petition form, I
will construe his petition as being filed under 28 ...