Carroll Tremayne v. State of California

Filing 3

ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED by Magistrate Judge Patrick J. Walsh. IT IS THEREFORE ORDERED that, no later than March 8, 2017, Petitioner shall inform the Court in writing why this case should not be dismissed for the reasons set forth. Failure to timely file a response will result in dismissal. (See document for further details.) (sbou)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TREMAYNE CARROLL,

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Petitioner,

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v.
STATE OF CALIFORNIA,

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Respondent.

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CASE NO. CV 17-878-SJO (PJW)
ORDER TO SHOW CAUSE WHY PETITION
SHOULD NOT BE DISMISSED

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Petitioner has filed a Petition for Writ of Habeas Corpus,

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pursuant to 28 U.S.C. § 2254, which appears to challenge an October

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2016 decision by the Los Angeles County Superior Court denying his

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petition for resentencing under state Proposition 36.

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6-8.)

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vague and violates his right to equal protection.

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From the face of the Petition, it appears that his claims are

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unexhausted.

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website, at www.appellatecases.courtinfo.ca.gov, shows that Petitioner

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currently has an appeal pending in the California Court of Appeal

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(Case No. B267822).

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(Petition at 4,

Petitioner contends that Proposition 36 is unconstitutionally
(Petition at 6, 8.)

Furthermore, a check of the state court appellate

As a matter of comity between state and federal courts, a federal
court generally will not address the merits of a habeas corpus

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petition unless the petitioner has first exhausted his state remedies,

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i.e., sought state court review of every ground presented in the

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petition by presenting it to the highest state court.

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455 U.S. 509, 518-22 (1982).

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petition brought by a person in state custody cannot be granted

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“unless it appears that--(A) the applicant has exhausted the remedies

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available in the courts of the State; or (B)(I) there is an absence of

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available State corrective process; or (ii) circumstances exist that

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render such process ineffective to protect the rights of the

Rose v. Lundy,

Indeed, the law provides that a habeas

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applicant.”

28 U.S.C. § 2254(b)(1).

To exhaust state remedies, a

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petitioner must fairly present his contentions to the state courts,

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and the highest court of the state must dispose of them on the merits.

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O’Sullivan v. Boerckel, 526 U.S. 838, 842, 844-45 (1999).

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court may raise a failure to exhaust sua sponte.

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Francisco, 968 F.2d 850, 856 (9th Cir. 1992.)

A district

Stone v. San

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Because it appears that Petitioner has never presented any of the

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claims raised in the instant Petition to the California Supreme Court,

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the Petition is completely unexhausted and is subject to dismissal on

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that basis.

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2006).

See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.

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IT IS THEREFORE ORDERED that, no later than March 8, 2017,

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Petitioner shall inform the Court in writing why this case should not

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be dismissed for the reasons set forth above.

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a response will result in dismissal.

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Failure to timely file

DATED: February 6, 2017

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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE
S:\PJW\Cases-State Habeas\CARROLL, T 878\OSC dismiss pet.wpd

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