United States District Court, C.D. California, Western Division
ORDER TO SHOW CAUSE
D. EARLY, UNITED STATES MAGISTRATE JUDGE
Russell Lee White (“Petitioner”) filed a pro
se Petition for Writ of Habeas Corpus by a Person in
State Custody (“Petition” or “Pet.”)
pursuant to 28 U.S.C. § 2254, alleging that California
Senate Bill (“SB”) 1391should be applied
retroactively to his case in the California courts and the
failure to resentence him violates his due process and equal
protection rights. However, the Petition appears to contain
one or more unexhausted claims and is untimely on its face.
The Court thus orders Petitioner to show cause why this
action should not be dismissed.
2005, in Los Angeles County Superior Court, Petitioner
pleaded no contest to robbery, rape, and lewd or lascivious
act upon a child who was under fourteen years of age. Pet. at
2; Los Angeles County Superior Court at
www.lacourt.org. Petitioner contends he was sentenced
to thirty years to life in state prison on May 11, 2005. Pet.
at 2. Petitioner did not file an appeal or a petition for
review. Pet. at 2-3.
January 24, 2019, Petitioner collaterally challenged his
conviction by filing a habeas petition in the Los Angeles
County Superior Court. Pet. at 3, 13, 23-24 (CM/ECF
pagination). That petition was denied on February 1, 2019.
Id. at 4. 23-24. Petitioner filed a habeas petition
in the California Court of Appeal on or about March 18, 2019,
which was denied on April 5, 2019. Id. at 4, 26.
Petitioner filed a habeas petition in the California Supreme
Court on June 13, 2019, and a supplement on September 16,
2019. Id. at 4, 10-18, 30-37; Appellate Courts Case
Information at https://appellatecases.courtinfo.ca.gov. That
petition was denied on September 25, 2019. Id. at 5,
28. On October 4, 2019,  Petitioner constructively filed the
Petitioner Has Not Exhausted His State Judicial
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 for relief
presented in the petition. Rose v. Lundy, 455 U.S.
509, 518-22 (1982). The habeas statute 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). Under the total exhaustion rule, if
even one of the claims being alleged by a habeas petitioner
is unexhausted, the petition must be dismissed. See
Rose, 455 U.S. at 522; see also Coleman v.
Thompson, 501 U.S. 722, 731 (1991), modified by
Martinez v. Ryan, 566 U.S. 1 (2012); Castille v.
Peoples, 489 U.S. 346, 349 (1989).
requires that the petitioner's claims be fairly presented
to the state courts and be disposed of on the merits by the
highest court of the state. James v. Borg, 24 F.3d
20, 24 (9th Cir. 1994); Carothers v. Rhay, 594 F.2d
225, 228 (9th Cir. 1979); see also Libberton v.
Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Here, the
Petition, on its face, contains one or more unexhausted
claims, rendering it “mixed” and subject to
dismissal. Petitioner attached his California Supreme Court
habeas petition and supplement to the Petition. In the state
supreme court, Petitioner alleged that he was entitled to
resentencing under SB 1391. He did not, however, assert that
the failure to resentence him violated his due process or
equal protection rights. See Pet. at 12-15, 32-33.
Arguably, Petitioner may have intended to raise an equal
protection claim by contending that “defendants of
nonfinal cases [are] entitled to SB 1391 hearing and in
contrast defendants in final cases [are] excluded from equal
protection of Senate Bill 1391 mitigating benefits solely
based on a procedural directive.” Id. at 15.
Even affording Petitioner the benefit of every doubt and
liberally construing the state habeas petition to raise an
equal protection claim, however, the instant Petition remains
mixed because Petitioner did not assert a due process claim
in the California Supreme Court.
Section 2254 petition is determined to be mixed, the
petitioner may request to exercise one of various options
potentially available to him. In this case, the Court
reserves any further action on the exhaustion issue at this
time because another defect appears to exist. Namely, for the
reasons set forth below, the Petition, on its face, plainly
The Petition is Facially Untimely
the Petition was filed after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (the
“AEDPA”), it is subject to the AEDPA's
one-year statute of limitations, as set forth at 28 U.S.C.
§ 2244(d). See Soto v. Ryan, 760 F.3d 947,