United States District Court, C.D. California
Present: The Honorable MARIA A. AUDERO, United States
Magistrate Judge.
CIVIL MINUTES-GENERAL
Proceedings
(In Chambers): Order to Show Cause Why the Petition Should
Not Be Dismissed for Failure to
Exhaust
On
December 19, 2019, Petitioner Andrew C. Brewer, acting
pro se, executed a petition for a writ of habeas
corpus. (“Petition, ” ECF No. 1.) The Petition
alleges two grounds for relief: (1) “Petitioner
received unauthorized sentence from plea deal, ” and
(2) “Petitioner received 5 enhancements from an
unauthorized plea[] deal.” (Id. at 5.) Setting
aside the question of whether the Petition presents
cognizable grounds for federal habeas relief, the Petition
appears to be wholly unexhausted.
A state
prisoner must exhaust his state court remedies before a
federal court may consider granting habeas corpus relief. See
28 U.S.C. § 2254(b)(1)(A); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). To satisfy the
exhaustion requirement, a habeas petitioner must fairly
present his federal claims in the state courts “in
order to give the State the opportunity to pass upon and
correct alleged violations of its prisoners' federal
rights.” Duncan v. Henry, 513 U.S. 364, 365
(1995) (citation and quotation marks omitted). For a
petitioner in California state custody, this generally means
that the petitioner must have fairly presented his federal
claims to the California Supreme Court. See
O'Sullivan, 526 U.S. at 845 (interpreting 28 U.S.C.
§ 2254(c)); see also 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 presents “both the
operative facts and the federal legal theory on which his
claim is based.” Davis v. Silva, 511 F.3d
1005, 1009 (9th Cir. 2008) (citation and quotation marks
omitted); accord Gray v. Netherland, 518 U.S. 152,
162-63 (1996). The Court may raise exhaustion issues sua
sponte and may summarily dismiss a petition without
prejudice on exhaustion grounds. See Stone v. San
Francisco, 968 F.2d 850, 855-56 (9th Cir. 1992);
Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir.
1981).
Here,
the Petition does not clearly indicate whether Petitioner has
presented his claims to the California courts. On one hand,
Petitioner states he did not raise his claims in any
proceeding before the California courts. (See
Petition at 5-6.) Petitioner indicates he never appealed his
conviction or filed any habeas petition in the California
courts. (See Id. at 2-5 (responding
“N/A” to questions requesting information
regarding state-court habeas petitions).) On the other hand,
Petitioner states that a Los Angeles Superior Court judge
denied his application for habeas relief on August 7, 2019.
(See Id. at 11.) Petitioner attaches the Superior
Court's minute order denying his habeas petition.
(See Id. at 28-29.)
In any
event, nowhere in the Petition does Petitioner aver that he
ever presented his claims to the California Supreme Court.
(See generally id.) Petitioner must fairly present
his claims to the state's highest court before he may
maintain a suit in this federal district court. See
Gatlin, 189 F.3d at 888. Because the Petition is wholly
unexhausted, the Petition appears to be subject to summary
dismissal without prejudice. See 28 U.S.C. §
2254(b)(1)(A).
Before
the Court recommends dismissal of the action, the Court will
afford Petitioner an opportunity to respond. Petitioner is
ORDERED TO SHOW CAUSE why the Court should
not recommend dismissal of the Petition for failure to
exhaust claims in state court. Petitioner shall respond to
this Order to Show Cause in writing no later than
February 7, 2020. Petitioner may discharge
the Order to Show Cause by filing one of the following three
documents:
(1) Notice of Dismissal. Petitioner may file a
notice of dismissal of his Petition. The Clerk is directed to
attach Form CV-09 (Notice of Dismissal Pursuant to Federal
Rules of Civil Procedure 41(a) or (c)) to this Order to Show
Cause.
(2) Request for Rhines Stay. Petitioner may file a
request for a stay pursuant to Rhines v. Weber, 544
U.S. 269 (2005). If Petitioner elects this option, he must
make the requisite showing of good cause for his failure to
exhaust his unexhausted claims in state court prior to filing
his Petition. He also must demonstrate to the Court's
satisfaction that his unexhausted claims are not plainly
meritless-for example, by citing the Supreme Court authority
upon which he is relying in support of that claim. Finally,
he must demonstrate to the Court's satisfaction that he
has not engaged in abusive litigation tactics or intentional
delay. See Rhines, 544 U.S. at 277-78.
(3) Response to Order to Show Cause. If Petitioner
contends that he has exhausted his state-court remedies, he
may explain this clearly in a written response to this Order
to Show Cause. Petitioner should attach to his response
copies of any documents establishing that the claims are
exhausted, including a complete copy of his petition in the
California Supreme Court and any decision by the California
Supreme Court. (Petitioner also may indicate that, in the
event the Court still finds that the claims are unexhausted,
he selects one of the options discussed above.)
Petitioner
is expressly cautioned that failure to respond to this Order
to Show Cause will result in a recommendation that the
Petition be dismissed without prejudice for failure to
prosecute and failure to comply with a court order pursuant
to Federal Rule of Civil Procedure 41(b), and for failure to
exhaust claims in state court pursuant to 28 U.S.C. §
2254(b)(1)(A).
It is
so ordered.
Attachment
Form
CV-09 (Notice of Dismissal Pursuant to Federal Rules of Civil
...