United States District Court, C.D. California
Present: The Honorable Sheri Pym, United States Magistrate
CIVIL MINUTES - GENERAL
(In Chambers) Order to Show Cause Why Petition Should Not
Be Dismissed as Unexhausted
November 1, 2019, petitioner filed a Petition for Writ of
Habeas Corpus by a Person in State Custody under 28 U.S.C.
§ 2254. Petitioner raises three grounds for relief. In
the petition, petitioner states that he did not raise any of
the grounds on direct appeal in the California state courts,
nor has he filed a state habeas petition raising any of the
such, petitioner appears to concede that the claims in the
petition are wholly unexhausted. If so, the petition is
subject to dismissal. Accordingly, the court issues this
Order to Show Cause by November 27, 2019 why
the petition should not be dismissed as unexhausted.
prisoner must exhaust his or her state court remedies before
a federal court may consider granting habeas corpus relief.
28 U.S.C. § 2254(b)(1)(A); O'Sullivan v.
Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d
1 (1999). To satisfy the exhaustion requirement, a habeas
petitioner must fairly present his or her federal claims in
the state courts in order to give the State the opportunity
to pass upon and correct alleged violations of the
prisoner's federal rights. Duncan v. Henry, 513
U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per
curiam). A habeas petitioner must give the state courts
“one full opportunity” to decide a federal claim
by carrying out “one complete round” of the
state's appellate process in order to properly exhaust a
claim. O'Sullivan, 526 U.S. at 845.
petitioner in California state custody, this generally means
that the petitioner must have fairly presented his or her
claims in a petition to the California Supreme Court. See
O'Sullivan, 526 U.S. at 845 (interpreting 28 U.S.C.
§ 2254(c)); Gatlin v. Madding, 189 F.3d 882,
888 (9th Cir. 1999) (applying O'Sullivan to
California). A claim has been fairly presented if the
petitioner has both “adequately described the factual
basis for [the] claim” and “identified the
federal legal basis for [the] claim.” Gatlin,
189 F.3d at 888.
case, petitioner appears to concede that he has not exhausted
state court remedies on any of the grounds in the instant
petition. Therefore, it appears from the record now before
the court that the present petition is subject to dismissal
as wholly unexhausted. But the court will not rule on this
matter without first giving the petitioner an opportunity to
petitioner contends that he has in fact exhausted his state
court remedies on one or more of the grounds in the petition,
he should clearly explain this in a response to this Order,
which must be served and filed on or before November
27, 2019. Petitioner should attach to his response
copies of any documents establishing that the grounds are
indeed exhausted. (Petitioner may also file a response, and
include a notice that, if the court still finds the petition
to be unexhausted, he alternatively selects one of the other
options discussed below.)
may request a voluntary dismissal of this action without
prejudice pursuant to Federal Rule of Civil Procedure 41(a).
A Notice of Dismissal form is attached for petitioner's
convenience. The court advises petitioner, however, that if
petitioner should later attempt to again raise any dismissed
claims in subsequent habeas petition, those claims may be
time-barred under the statute of limitations in 28 U.S.C.
§ 2244(d)(1) (“A 1-year period of limitation shall
apply to an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State