United States District Court, C.D. California, Western Division
ORDER TO SHOW CAUSE
EARLY, UNITED STATES MAGISTRATE JUDGE
January 2, 2020, the Court received from Petitioner Harry Lee
Ollie (“Petitioner”) a Petition for Writ of
Habeas Corpus by a Person in State Custody
(“Pet.” or “Petition”). Dkt. 1. The
Petition is directed at Petitioner's 2017 conviction in
and sentence imposed by the Los Angeles County Superior
Court. Pet. at 2 (CM/ECF pagination is used herein for page
references to the Petition). Petitioner facially raises two
grounds for relief: (1) sufficiency of the evidence; and (2)
a challenge to the jury instructions issued by the trial
court. Pet. at 9-13. The Court interprets the grounds broadly
to assert challenges under the Due Process Clause Fourteenth
Amendment, and further, broadly interpreting the Petition,
finds based upon an initial review and without prejudice to a
potential challenge by Respondents, that Petitioner has made
a prima facie showing that he has exhausted his available
state remedies as to those two stated grounds.
the final sentence of Ground Two further states:
“Appellant's Sixth Amendment constitutional right
to be confronted with the witnesses against him was violated
as his accuser, victim did not take the stand leaving
conviction to be had by speculation.” Pet. at 12. It
does not appear that Petitioner has exhausted in state court
any Sixth Amendment claim for relief.
Petitioner intended by that last sentence of Ground Two in
the Petition to raise a separate claim based on the Sixth
Amendment, then the Petition appears partially unexhausted
and subject to dismissal. However, if Petitioner did not
intend to assert a separate Sixth Amendment ground for
relief, the Petition facially would not appear subject to
dismissal on exhaustion grounds. Therefore, as explained
further below, the Court orders Plaintiff to provide
clarification regarding whether he intended to assert a third
ground for relief based on the Sixth Amendment, and if he
did, show cause why the action should not be dismissed.
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 claim 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). The Ninth Circuit has held that a federal court may
raise the failure to exhaust issue sua sponte.
See Stone v. City & Cnty. of San Francisco, 968
F.2d 850, 856 (9th Cir. 1992) (as amended).
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). A claim has
not been fairly presented to a state court unless the
petitioner has described both the operative facts and the
federal legal theory on which the claim is based. Duncan
v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam);
Picard v. Connor, 404 U.S. 270, 275-78 (1971);
Greenway v. Schriro, 653 F.3d 790, 801 (9th Cir.
2011); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir.
1996). Petitioner has the burden of demonstrating that he has
exhausted his available state remedies. See, e.g.,
Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir.
1972) (per curiam). However, the Ninth Circuit has held that,
for purposes of exhaustion, pro se petitions are
held to a more lenient standard than counseled petitions.
Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003);
Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir.
2003) (en banc).
noted above, although it appears that Petitioner's two
stated grounds have been exhausted, if the sentence at the
end of Ground Two is interpreted as a separate ground for
relief based on the Sixth Amendment, such a claim does not
appear to have been fairly presented to the state courts and
disposed of on the merits by the California Supreme Court and
thus does not appear to have been exhausted. If it were clear
that the California Supreme Court would hold that
Petitioner's possible Sixth Amendment claim was
procedurally barred under state law, then the exhaustion
requirement would be satisfied. See Castille, 489
U.S. 346 at 351-52; Johnson, 88 F.3d at
Here, however, it is not clear that the California Supreme
Court will so hold. Thus, if the Petition asserts a claim
based on the Sixth Amendment, it would be unexhausted under
the rule set forth by Rose v. Lundy, set forth
above, and subject to sua sponte dismissal. However,
before making any finding, the Court will afford Petitioner
an opportunity to respond and, importantly, to clarify
whether, by the single reference to the Sixth Amendment at
the end of Ground Two, Petitioner intended to raise a
separate claim for relief.
Petitioner is ORDERED TO SHOW CAUSE in writing, why this
action should not be summarily dismissed without prejudice
pursuant to Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Courts for failure to exhaust
state remedies. By no later than February 4, 2020,
Petitioner shall file a response to this Order.
Response, Petitioner shall first state whether he intended by
the above-quoted last sentence of Ground Two in the Petition
to raise a third claim for relief based on the Sixth
Amendment. If he did not intend to raise a separate Sixth
Amendment claim for relief, but instead only intended to
raise two grounds, one based upon the sufficiency of the
evidence and one based on alleged improper jury instructions,
he should so state. If Petitioner states that he only
intended to assert those two grounds for relief and did not
intend to assert a separate Sixth Amendment claim, he need
make no further response and the Petition will no longer be
subject to dismissal as partially unexhausted on the basis of
such an unexhausted Sixth Amendment claim.
Petitioner did intend to assert a third claim for relief
based on the Sixth Amendment, and if he contends that he has,
in fact, exhausted such claim, he must clearly explain the
basis for this contention, and ...