Thomas R. Cunningham v. E. Valenzuela

Filing 10

ORDER TO SHOW CAUSE by Magistrate Judge Alicia G. Rosenberg. On March 28, 2016, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition") in the Northern District of C alifornia, which transferred the action to this district. For the reasons discussed below, the Court orders Petitioner to show cause, on or before June 27, 2016, why this Court should not recommend dismissal without prejudice for failure to exhaust state remedies. (See Order for details.) (mp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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THOMAS R. CUNNINGHAM,

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Petitioner,
v.
E. VALENZUELA,
Respondent.

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No. CV 16-3629-DMG (AGR)
ORDER TO SHOW CAUSE

On March 28, 2016, Petitioner filed a Petition for Writ of Habeas Corpus by a

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Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”) in the Northern

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District of California, which transferred the action to this district. For the reasons

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discussed below, the Court orders Petitioner to show cause, on or before June 27,

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2016, why this Court should not recommend dismissal without prejudice for failure to

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exhaust state remedies.

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I.

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EXHAUSTION

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The Petition was filed after enactment of the Antiterrorism and Effective Death

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Penalty Act of 1996 (“AEDPA”). Therefore, the Court applies the AEDPA in reviewing

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the petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997).

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The AEDPA expressly provides that a petition for writ of habeas corpus brought

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by a person in state custody “shall not be granted unless it appears that – (A) the

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applicant has exhausted the remedies available in the courts of the State; or (b)(I) there

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is an absence of available State corrective process; or (ii) circumstances exist that

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render such process ineffective to protect the rights of the applicant.” 28 U.S.C.

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§ 2254(b)(1).

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

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highest court, in this case the California Supreme Court. James v. Borg, 24 F.3d 20, 24

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(9th Cir. 1994). Petitioner bears the burden of demonstrating that she described to the

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California Supreme Court both the operative facts and the federal legal theory on which

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his claim is based. Duncan v. Henry, 513 U.S. 364 (1995).

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The Petition contains one ground for relief. Petitioner asserts that the trial court

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wrongly denied, for lack of jurisdiction, his Cal. Penal Code § 4019 petition seeking 177

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days of additional sentencing credit. But Petitioner admits that he has not presented

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this claim to California Supreme Court. (Petition ¶ 9.) The Court takes judicial notice the

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state courts’ public records include no action filed by a Thomas Cunningham in the California

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Supreme Court. Petitioner must exhaust his claim in the California Supreme Court before

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presenting it in federal court.

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For these reasons, it appears that the Petition in this Court is completely

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unexhausted. The Ninth Circuit recently held that a district court has authority to stay

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habeas petitions that are wholly unexhausted. Mena v. Long, 813 F.3d 907, 912 & n.3

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(9th Cir. 2016). In light of Mena, Petitioner may wish to file a motion for a stay of his

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federal habeas petition while he exhausts his claim before the California Supreme

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Court. To obtain a stay under Rhines v. Weber, 544 U.S. 269 (2005), a petitioner must

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show that he had good cause for failing to exhaust claims in the California Supreme

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Court, that his claims are "potentially meritorious" and that he has not engaged in

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intentional delay tactics. Id. at 277-78. Alternatively, Petitioner may seek a stay under

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Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). Petitioner should promptly initiate

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exhaustion proceedings in the state court without waiting for a ruling from this court on

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his motion for a stay.

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II.

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ORDER TO SHOW CAUSE

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IT IS THEREFORE ORDERED that, on or before June 27, 2016, Petitioner shall

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show cause, if there be any, why this Court should not recommend dismissal without

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prejudice for failure to exhaust state remedies. If Petitioner contends that the

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exhaustion requirement has been met, Petitioner should attach a complete copy of his

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petition before the California Supreme Court, a complete copy of any decision by the

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California Supreme Court, and clearly explain how the exhaustion requirement has

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been met. If Petitioner wishes to seek a stay while he exhausts remedies in state court,

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Petitioner must file a motion for stay of proceedings on or before June 27, 2016.

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If Petitioner does not respond to this Order to Show Cause, the Magistrate

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Judge will recommend that the Court order the petition dismissed, without

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prejudice, for failure to exhaust Petitioner’s claims.

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DATED: May 27, 2016
ALICIA G. ROSENBERG
United States Magistrate Judge

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