Jeremy James Figueroa v. David Baughman

Filing 4

MINUTE ORDER (IN CHAMBERS) ORDER TO SHOW CAUSE by Magistrate Judge Steve Kim. Petitioner is hereby ORDERED TO SHOW CAUSE on or before April 21, 2017 why the Court should not dismiss the Petition for failure to exhaust state court remedies. Petitioner may discharge this Order to Show Cause by filing a First Amended Petition that deletes his unexhausted claims and alleges only his exhausted claims. The First Amended Petition must be complete in itself without reference to the original Petition. (mkr)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:17-cv-02032-BRO (SK)

Title

Jeremy James Figueroa v. David Baughman, Warden

Present: The Honorable

Date

March 21, 2017

Steve Kim, U.S. Magistrate Judge

Marc Krause

n/a

Deputy Clerk

Court Smart / Recorder

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

None present

None present

Proceedings:

(IN CHAMBERS) ORDER TO SHOW CAUSE RE MIXED
PETITION

On March 13, 2016, the Court received an undated 28 U.S.C. § 2254 Petition in which
Petitioner, a prisoner in state custody proceeding pro se, challenges his 2014 murder
convictions. (ECF No. 1). Petitioner has not attached to the Petition copies of the relevant
state appellate court opinions, but he alleges that he raised his first, third, and fourth grounds
for relief during his direct appeal. Petitioner has not sought habeas relief in state court.
Federal courts may not grant habeas relief to a petitioner held in state custody unless the
petitioner has exhausted available state court remedies as to each of the claims presented. 28
U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 518 (1982); Fields v. Waddington, 401
F.3d 1018, 1020 (9th Cir. 2005). To satisfy the exhaustion requirement, a state prisoner must
“fairly present” his federal claim to the state courts to give them a fair opportunity to consider
and correct violations of the prisoner’s federal rights. See Duncan v. Henry, 513 U.S. 364, 365
(1995); Peterson v. Lampert, 319 F.3d 1153, 1155–56 (9th Cir. 2003) (en banc). A state
prisoner seeking relief with respect to a California conviction is required to “fairly present” his
federal claims to the California Supreme Court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004).
Here, Petitioner acknowledges that he did not exhaust his second ground for relief —
namely, that his trial counsel was constitutionally ineffective for failing to raise certain
objections or request certain instructions — by fairly presenting this claim to the California
Supreme Court before filing the Petition. The Petition therefore appears subject to immediate
dismissal for lack of exhaustion because it is “mixed” — that is, it contains both exhausted and
unexhausted claims. Accordingly, Petitioner is hereby ORDERED TO SHOW CAUSE on or
before April 21, 2017 why the Court should not dismiss the Petition for failure to exhaust
state court remedies. Petitioner may discharge this Order to Show Cause by filing a First
Amended Petition that deletes his unexhausted claim and alleges only his exhausted claims.
The First Amended Petition must be complete in itself without reference to the original
Petition. Petitioner is advised that failure to file a timely response to this Order to
Show Cause may result in dismissal of this action for failure to prosecute. See Fed.
R. Civ. P 41(b); L.R. 41-1.

CV-90 (10/08)

CIVIL MINUTES - GENERAL

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