Carroll Tremayne v. State of California
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)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
STATE OF CALIFORNIA,
CASE NO. CV 17-878-SJO (PJW)
ORDER TO SHOW CAUSE WHY PETITION
SHOULD NOT BE DISMISSED
Petitioner has filed a Petition for Writ of Habeas Corpus,
pursuant to 28 U.S.C. § 2254, which appears to challenge an October
2016 decision by the Los Angeles County Superior Court denying his
petition for resentencing under state Proposition 36.
vague and violates his right to equal protection.
From the face of the Petition, it appears that his claims are
website, at www.appellatecases.courtinfo.ca.gov, shows that Petitioner
currently has an appeal pending in the California Court of Appeal
(Case No. B267822).
(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
petition unless the petitioner has first exhausted his state remedies,
i.e., sought state court review of every ground presented in the
petition by presenting it to the highest state court.
455 U.S. 509, 518-22 (1982).
petition brought by a person in state custody cannot 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
Rose v. Lundy,
Indeed, the law provides that a habeas
28 U.S.C. § 2254(b)(1).
To exhaust state remedies, a
petitioner must fairly present his contentions to the state courts,
and the highest court of the state must dispose of them on the merits.
O’Sullivan v. Boerckel, 526 U.S. 838, 842, 844-45 (1999).
court may raise a failure to exhaust sua sponte.
Francisco, 968 F.2d 850, 856 (9th Cir. 1992.)
Stone v. San
Because it appears that Petitioner has never presented any of the
claims raised in the instant Petition to the California Supreme Court,
the Petition is completely unexhausted and is subject to dismissal on
See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.
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 above.
a response will result in dismissal.
Failure to timely file
DATED: February 6, 2017
PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE
S:\PJW\Cases-State Habeas\CARROLL, T 878\OSC dismiss pet.wpd
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?