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Rodriguez v. Montgomery

United States District Court, C.D. California

November 6, 2019

MARIO ALBERTO RODRIGUEZ
v.
W. MONTGOMERY, Warden

          Present: The Honorable Sheri Pym, United States Magistrate Judge

          CIVIL MINUTES - GENERAL

         Proceedings: (In Chambers) Order to Show Cause Why Petition Should Not Be Dismissed as Unexhausted

         On 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 grounds.

         As 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.

         The Exhaustion Requirement

         A state 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.

         For a 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.

         In this 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 respond.

         Petitioner's Options

         Option 1:

         If 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.)

         Option 2:

         Petitioner 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 court.”).

         Optio ...


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