Jason Weldon v. Kelly Harrington

Filing 4

ORDER TO SHOW CAUSE by Magistrate Judge Robert N. Block; Accordingly, on or before August 5, 2011, petitioner is ordered to show cause in writing (if any he has) why the Court should not recommend that this action be dismissed without prejudice for failure to exhaust state remedies. ( Response to Order to Show Cause due by 8/5/2011.) (twdb)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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JASON WELDON,

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Petitioner,

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vs.
KELLY HARRINGTON,
WARDEN,
Respondent.

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) Case No. CV 11-5808-GHK (RNB)
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) ORDER TO SHOW CAUSE
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On July 14, 2011, petitioner (through counsel) filed a Petition for Writ of

18 Habeas Corpus by a Person in State Custody herein. The Petition purports to state
19 three grounds for relief.
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Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless petitioner

21 has exhausted the remedies available in the courts of the State.1 Exhaustion requires
22 that the prisoner’s contentions be fairly presented to the state courts and be disposed
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The habeas statute now explicitly provides that a habeas petition brought
25 by a person in state custody “shall not be granted unless it appears that-- (A) the
26 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
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that render such process ineffective to protect the rights of the applicant.” 28 U.S.C.
28 § 2254(b)(1).
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1 of on the merits by the highest court of the state. See James v. Borg, 24 F.3d 20, 24
2 (9th Cir.), cert. denied, 513 U.S. 935 (1994); Carothers v. Rhay, 594 F.2d 225, 228
3 (9th Cir. 1979). Moreover, a claim has not been fairly presented unless the prisoner
4 has described in the state court proceedings both the operative facts and the federal
5 legal theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 3656 66, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995); Picard v. Connor, 404 U.S. 270, 2757 78, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). As a matter of comity, a federal court will
8 not entertain a habeas corpus petition unless the petitioner has exhausted the available
9 state judicial remedies on every ground presented in the petition. See Rose v. Lundy,
10 455 U.S. 509, 518-22, 102 S. Ct. 1198, 71 L. Ed. 2d 179 (1982). Petitioner has the
11 burden of demonstrating that he has exhausted available state remedies. See, e.g.,
12 Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). The Ninth Circuit has held that
13 a federal court may raise the failure to exhaust issue sua sponte and may summarily
14 dismiss on that ground. See Stone v. San Francisco, 968 F.2d 850, 856 (9th Cir.
15 1992), cert. denied, 506 U.S. 1081 (1993); Cartwright v. Cupp, 650 F.2d 1103, 1104
16 (9th Cir. 1982) (per curiam), cert. denied, 455 U.S. 1023 (1982); see also Granberry
17 v. Greer, 481 U.S. 129, 134-35, 107 S. Ct. 1671, 95 L. Ed. 2d 119 (1987).
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Here, it appears from the face of the Petition that petitioner did not exhaust his

19 state remedies with respect to any of his grounds for relief. The only California
20 Supreme Court filing identified in the Petition is petitioner’s Petition for Review to
21 the California Supreme Court. None of the three grounds for relief alleged in the
22 Petition corresponds to any of the grounds listed by petitioner as raised in his Petition
23 for Review. Moreover, for each ground for relief specified in ¶ 7 of the Petition,
24 petitioner answered “no” in response to the questions asking whether he raised the
25 claim in a Petition for Review or in a habeas petition to the California Supreme Court.
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If it were clear that the California Supreme Court would hold that petitioner’s

27 unexhausted claims were procedurally barred under state law, then the exhaustion
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1 requirement would be satisfied.2 See Castille v. Peoples, 489 U.S. 346, 351-52, 109
2 S. Ct. 1056, 103 L. Ed. 2d 380 (1989); Johnson v. Zenon, 88 F.3d 828, 831 (9th Cir.
3 1996); Jennison v. Goldsmith, 940 F.2d 1308, 1312 (9th Cir. 1991). However, it is
4 not “clear” here that the California Supreme Court will hold that petitioner’s claims
5 are procedurally barred under state law. See, e.g., In re Harris, 5 Cal. 4th 813, 825,
6 21 Cal. Rptr. 2d 373, 855 P.2d 391 (1993) (granting habeas relief where petitioner
7 claiming sentencing error, even though the alleged sentencing error could have been
8 raised on direct appeal); People v. Sorensen, 111 Cal. App. 2d 404, 405, 244 P.2d 734
9 (1952) (noting that claims that fundamental constitutional rights have been violated
10 may be raised by state habeas petition). The Court therefore concludes that this is not
11 an appropriate case for invocation of either “exception” cited above to the
12 requirement that a petitioner’s federal claims must first be fairly presented to and
13 disposed of on the merits by the state’s highest court.
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Finally, the Court notes that this is not an appropriate case for invocation of the

15 stay-and-abeyance procedure authorized by Rhines v. Weber, 544 U.S. 269, 277-78,
16 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005), or the stay-and-abeyance procedure
17 authorized by Calderon v. United States Dist. Court (Taylor), 134 F.3d 981, 987-88
18 (9th Cir.), cert. denied, 525 U.S. 920 (1998) and Kelly v. Small, 315 F.3d 1063, 1070
19 (9th Cir. 2004), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143,
20 1149 (9th Cir. 2007). The Rhines procedure applies to mixed petitions, and the Kelly
21 procedure applies to fully exhausted petitions. See King v. Ryan, 564 F.3d 1133,
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In that event, although the exhaustion impediment to consideration of
petitioner’s claims on their merits would be removed, federal habeas review of the
claims would still be barred unless petitioner could demonstrate “cause” for the
default and “actual prejudice” as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims would result in a “fundamental
miscarriage of justice.” See Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct.
2546, 115 L. Ed. 2d 640 (1991).
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1 1139-40 (9th Cir.), cert. denied, 130 S. Ct. 214 (2009). The Petition herein is neither;
2 rather, it constitutes a petition containing solely unexhausted claims. The Ninth
3 Circuit has held in a post-Rhines decision that the stay-and-abeyance procedure does
4 not apply to petitions containing solely unexhausted claims. See Rasberry v. Garcia,
5 448 F.3d 1150, 1154 (9th Cir. 2006). A petition containing solely unexhausted
6 claims must be dismissed. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001),
7 cert. denied, 538 U.S. 949 (2003).
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Accordingly, on or before August 5, 2011, petitioner is ordered to show cause

9 in writing (if any he has) why the Court should not recommend that this action be
10 dismissed without prejudice for failure to exhaust state remedies.
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12 DATED:

July 18, 2011

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ROBERT N. BLOCK
UNITED STATES MAGISTRATE JUDGE

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