Jamal King v. Stu Sherman

Filing 4

ORDER TO SHOW CAUSE by Magistrate Judge Alexander F. MacKinnon. Response to Order to Show Cause due by 2/3/2016. (See document for details). (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Petitioner,

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ORDER TO SHOW CAUSE

v.

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Case No. CV 15-9948 ODW (AFM)

JAMAL KING,

STU SHERMAN, Warden,
Respondent.

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On December 29, 2015, petitioner filed a Petition for Writ of Habeas Corpus

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by a Person in State Custody (28 U.S.C. § 2254).

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In an earlier action, in Case No. CV 15-9514-ODW (AFM), petitioner had

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filed a “Motion for: Stay & Abeyance.” This action was summarily dismissed on

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December 18, 2015, because the Motion was unaccompanied by a Petition. Since

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petitioner has now filed a Petition, the Clerk of the Court has filed the Petition with

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a new case number.

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Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless

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petitioner has exhausted the remedies available in the courts of the State.1

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The habeas statute now explicitly 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

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Exhaustion requires that the prisoner’s contentions be fairly presented to the state

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courts and be disposed of on the merits by the highest court of the state. See James

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v. Borg, 24 F.3d 20, 24 (9th Cir. 1994); Carothers v. Rhay, 594 F.2d 225, 228 (9th

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Cir. 1979). Moreover, a claim has not been fairly presented unless the prisoner has

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described in the state court proceedings both the operative facts and the federal

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legal theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365-

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66 (1995); Picard v. Connor, 404 U.S. 270, 275-78 (1971). As a matter of comity,

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a federal court will not entertain a habeas corpus petition unless the petitioner has

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exhausted the available state judicial remedies on every ground presented in the

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petition. See Rose v. Lundy, 455 U.S. 509, 518-22 (1982). Petitioner has the

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burden of demonstrating that he has exhausted available state remedies. See, e.g.,

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Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982).

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Here, it appears from the face of the Petition that petitioner did not exhaust

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his state remedies with respect to four of his six grounds for relief. Specifically, it

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appears that Grounds Three to Six were raised for the first time in a habeas petition

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that currently is pending before the California Supreme Court.

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Accordingly, petitioner’s inclusion of Grounds Three to Six in the Petition

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renders the Petition a “mixed petition” containing both exhausted and unexhausted

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claims. If it were clear here that petitioner’s unexhausted claims were procedurally

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barred under state law, then the exhaustion requirement would be satisfied. See

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Castille v. Peoples, 489 U.S. 346, 351-52 (1989); Johnson v. Zenon, 88 F.3d 828,

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831 (9th Cir. 1996); Jennison v. Goldsmith, 940 F.2d 1308, 1312 (9th Cir. 1991).

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However, it is not “clear” here that the California Supreme Court would hold that

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petitioner’s unexhausted claims are procedurally barred under state law, if

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petitioner were to raise them in a habeas petition to the California Supreme Court

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(which being an original proceeding is not subject to the same timeliness

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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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requirement as a Petition for Review of a Court of Appeal decision). See, e.g., In re

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Harris, 5 Cal. 4th 813, 825 (1993) (granting habeas relief where petitioner claiming

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sentencing error, even though the alleged sentencing error could have been raised

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on direct appeal); People v. Sorensen, 111 Cal. App. 2d 404, 405 (1952) (noting

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that claims that fundamental constitutional rights have been violated may be raised

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by state habeas petition).

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appropriate case for invocation of either statutory “exception” to the requirement

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that a petitioner’s federal claims must first be fairly presented to and disposed of on

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the merits by the state’s highest court. See 28 U.S.C. § 2254(b)(1)(B).

The Court therefore concludes that this is not an

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Under the total exhaustion rule, if even one of the claims being alleged by a

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habeas petitioner is unexhausted, the petition must be dismissed. See Rose, 455

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U.S. at 522; see also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Castille,

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489 U.S. at 349. However, more recently, the Supreme Court held that, in certain

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“limited circumstances,” a district court may stay a mixed petition and hold it in

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abeyance while the petitioner returns to state court to exhaust his unexhausted

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claims.

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abeyance is only appropriate when the district court determines there was good

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cause for the petitioner’s failure to exhaust his claims first in state court”). Under

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Rhines, the prerequisites for obtaining a stay while the petitioner exhausts his state

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remedies are: (a) that the petitioner show good cause for his failure to exhaust his

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claims first in state court; (b) that the unexhausted claims not be “plainly meritless”;

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and (c) that petitioner not have engaged in “abusive litigation tactics or intentional

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delay.” See id. at 277-78. Here, although petitioner did file a “Motion for: Stay &

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Abeyance” in the previous action, in Case No. CV 15-9514-ODW (AFM),

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petitioner did not purport to make all three of the requisite showings for stay-and-

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abeyance.

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See Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding “stay and

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IT THEREFORE IS ORDERED that, on or before February 3, 2016,

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petitioner either file his stay-and-abeyance application (if he believes he can make

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the requisite showings) or show cause in writing, if any he has, why the Court

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should not recommend that this action be dismissed without prejudice for failure to

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exhaust state remedies unless petitioner withdraws his unexhausted claims.

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DATED: January 5, 2016

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ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE

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