Herman Lawrence Howard v. Los Angeles Co. Superior Court et al

Filing 4

ORDER TO SHOW CAUSE by Magistrate Judge Alicia G. Rosenberg. IT IS THEREFORE ORDERED that, on or before May 5, 2017, Petitioner shall show cause, if there be any, why this Court should not recommend dismissal without prejudice for failure to exhaust state remedies. (See Order for Further Details) (kl)

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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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v.
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LOS ANGELES COUNTY SUPERIOR )
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COURT, et al.,
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Respondents.
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HERMAN LAWRENCE HOWARD,

No. CV 17-2245-AG (AGR)
ORDER TO SHOW CAUSE

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On March 22, 2017, 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. For the reasons discussed

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below, the Court orders Petitioner to show cause, on or before May 5, 2017, why this

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Court should not recommend dismissal without prejudice for failure to exhaust state

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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 he 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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Petitioner has checked boxes on the form petition indicating that he has not

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presented his current claims – asserting ineffective assistance of trial counsel and

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excessive sentencing – to either the California Court of Appeal or the California

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Supreme Court. Pursuant to Fed. R. Evid. 201, the Court takes judicial notice that the

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state courts’ public records include no action filed by a Herman Howard in the California

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Supreme Court at any time. Petitioner must exhaust his claims in the California

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Supreme Court before presenting them in federal court.

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For these reasons, it appears that the Petition is completely unexhausted. The

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Ninth Circuit has held that a district court has authority to stay habeas petitions that are

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wholly unexhausted. Mena v. Long, 813 F.3d 907, 912 & n.3 (9th Cir. 2016). In light of

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Mena, Petitioner may file a motion for a stay of his federal habeas petition while he

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exhausts his claims before the California Supreme Court. To obtain a stay under

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Rhines v. Weber, 544 U.S. 269 (2005), a petitioner must show that he had good cause

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for failing to exhaust claims in the California Supreme Court, that his claims are

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"potentially meritorious," and that he has not engaged in intentional delay tactics. Id. at

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277-78. Alternatively, Petitioner may seek a stay under Kelly v. Small, 315 F.3d 1063

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(9th Cir. 2003). Petitioner should promptly initiate exhaustion proceedings in the state

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court without waiting for a ruling from this court on 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 May 5, 2017, 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 May 5, 2017.

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Petitioner need not await a ruling from this Court before filing a petition in the California

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Supreme Court.

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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: 4/5/17
ALICIA G. ROSENBERG
United States Magistrate Judge

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