Lamont L Bienvenue v. Anthony Hedgepeth

Filing 5

ORDER TO SHOW CAUSE by Magistrate Judge Jean P Rosenbluth. (See Order for details.) IT THEREFORE IS ORDERED that on or before March 21, 2012, Petitioner shall show cause in writing why the Court should not recommend that Petitioner's stay-and-abey motion be denied and this action be dismissed without prejudice for failure to exhaust state remedies. Response to Order to Show Cause due by 3/21/2012. (wr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LAMONT L. BIENVENUE,

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Petitioner,
vs.
ANTHONY HEDGEPETH et al.
Respondent.

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) Case No. CV 12-0273-JST (JPR)
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) ORDER TO SHOW CAUSE
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On January 11, 2012, Petitioner filed a petition for writ of

18 habeas corpus pursuant to 28 U.S.C. § 2254.

On January 12, 2012,

19 the Court dismissed the Petition with leave to amend, for two
20 reasons: (1) the Petition form omitted necessary information and
21 included contradictory information, and (2) Petitioner did not
22 set forth any grounds for relief.

The Court gave Petitioner

23 until February 13, 2012, to file a First Amended Petition.

On

24 February 15, 2012, Petitioner did so, along with a motion to stay
25 and abey the federal Petition in order to return to state court
26 to exhaust his remedies.
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Under 28 U.S.C. § 2254(b), habeas relief may not be granted

28 unless a petitioner has exhausted the remedies available in state
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1 court.1

Exhaustion requires that Petitioner’s contentions were

2 fairly presented to the state courts and disposed of on the
3 merits by the highest court of the state.
4 F.3d 20, 24 (9th Cir. 1994).

See James v. Borg, 24

As a matter of comity, a federal

5 court will not entertain a habeas corpus petition unless the
6 petitioner has exhausted the available state judicial remedies on
7 every ground presented in the petition.

See Rose v. Lundy, 455

8 U.S. 509, 518, 102 S. Ct. 1198, 1203, 71 L. Ed. 2d 379 (1982).

A

9 federal court may raise the failure-to-exhaust issue sua sponte
10 and may summarily dismiss on that ground.

See Stone v. San

11 Francisco, 968 F.2d 850, 856 (9th Cir. 1992); see also Granberry
12 v. Greer, 481 U.S. 129, 134-35, 107 S. Ct. 1671, 1675, 95 L. Ed.
13 2d 119 (1987).
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In section seven of the First Amended Petition, Petitioner

15 has checked boxes indicating that none of the three asserted
16 claims for relief was ever raised in any state court proceeding
17 (see Pet. at 5-6); it is undoubtedly for that reason that
18 Petitioner separately has filed a motion seeking to stay this
19 Petition and hold it in abeyance while he exhausts his remedies
20 in state court.
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In certain “limited circumstances,” a district court may

22 stay a “mixed” petition – that is, one raising both exhausted and
23 unexhausted claims – and hold it in abeyance while the petitioner
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A habeas petition “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).
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1 returns to state court to exhaust unexhausted claims.

See Rhines

2 v. Weber, 544 U.S. 269, 277, 125 S. Ct. 1528, 1535, 161 L. Ed. 2d
3 440 (2005).

Fully unexhausted petitions, however – those in

4 which none of the claims have ever been presented to the state
5 supreme court – may not be stayed and held in abeyance.

See

6 Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (decided
7 after Rhines).

Rather, they must be dismissed.

See id.; Jiminez

8 v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (dismissing fully
9 unexhausted petition raising ineffective assistance of counsel
10 and other claims); see also Roberts v. McDonald, EDCV 10-873-AHM
11 (FFM), 2010 WL 2539762, at *3 n.2 (C.D. Cal. June 17, 2010)
12 (same, following Rasberry).
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IT THEREFORE IS ORDERED that on or before March 21, 2012,

14 Petitioner shall show cause in writing why the Court should not
15 recommend that Petitioner’s stay-and-abey motion be denied and
16 this action be dismissed without prejudice for failure to exhaust
17 state remedies.
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19 DATED: February 21, 2012
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JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE

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