Matthew Thompson v. William Muniz

Filing 6

ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED DUE TO FAILURE TO EXHAUST by Magistrate Judge Shashi H. Kewalramani. Response to Order to Show Cause due by 12/21/2017. Mr. Thompson must respond to this Order pursuant to one of the options listed. (SEE ORDER FOR DETAILS) (Attachments: # 1 Notice of Dismissal Form) (jlo)

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

2:17-cv-04296-JLS (SHK)

Date: November 21, 2017

Title: Matthew Thompson v. William Muniz, Warden

Present: The
Honorable

SHASHI H. KEWALRAMANI, UNITED STATES MAGISTRATE JUDGE

D. CASTELLANOS

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Petitioner:

Attorney(s) Present for Respondent:

None Present

None Present

Proceedings:

(In Chambers) Order to Show Cause Why Petition Should Not Be
Dismissed Due to Failure to Exhaust
I.

INTRODUCTION

On June 9, 2017, Petitioner Matthew Thompson (“Mr. Thompson”) constructively filed1
a Petition for Writ of Habeas Corpus, under 28 U.S.C. § 2254 (the “Petition”). For the reasons
set forth below, the Court finds the Court may be required to dismiss the Petition because Mr.
Thompson has not exhausted his state court remedies. This is because it does not appear that he
appealed his denials of state habeas relief from the California Court of Appeal to the California
Supreme Court. The Court will not make a final determination regarding whether the Petition
should be dismissed, however, without giving Mr. Thompson an opportunity to address these
issues and to show whether he has appealed his writs of habeas corpus from the California Court
of Appeal to the California Supreme Court.
II.

BACKGROUND

In his Petition, Mr. Thompson challenges his conviction of second degree murder, two
counts of attempted murder, one count of shooting at an occupied building, and a gang sentence
1

Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to
court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v.
Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted).
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enhancement under California Penal Code section 186.22. Electronic Case Filing Number
(“ECF No.”) 1 at 10, 12. Mr. Thompson was sentenced to 140-years to life, however, on
September 3, 2015, the California Court of Appeals affirmed the convictions but ordered that Mr.
Thompson be resentenced to ninety-four years-to-life. Id. at 12.
Mr. Thompson raises five grounds for relief in his Petition. Id. at 7-11. First, he argues
that the denial of his severance motion was reversible error “amounting to a denial of due
process.” Id. at 7. Second, he appears to argue that the trial court erred in permitting hearsay
testimony during his trial. Id. at 8. Third, he argues that the trial court erred in not granting his
request for a new trial. Id. at 9. Fourth, in light of recent California case law, he argues that there
was insufficient evidence to apply the sentencing enhancement under California Penal Code
section 186.22. Id. at 10. Finally, he argues that the trial court committed instructional error
when it instructed the jury under the natural and probable consequences theory of aiding and
abetting for first degree murder when the alleged first degree murder was not reasonably
foreseeable. Id. at 11.
Mr. Thompson claims that he raised the same issues presented here as in his petition for
habeas corpus to the California Superior Court. Id. at 6. On February 2, 2017, the California
Superior Court denied his petition for habeas corpus because he failed to “establish entitlement
to relief by a preponderance of the evidence” and because the trial court correctly applied the
gang sentence enhancement “based on the facts recited in the appellate opinion, [that Mr.
Thompson] self-identified” as a gang member. Id. at 12-13. On March 6, 2017, Mr. Thompson
filed a petition for habeas corpus in the California Court of Appeals, which was denied on March
15, 2017 (Court of Appeal Case No. B281088). Id. at 38. According to the California Court of
Appeal’s website, Mr. Thompson filed a petition for habeas corpus in the California Court of
Appeals on June 5, 2017 (Court of Appeal Case No. B282919), which was denied on June 12,
2017.2
III.

THE PETITION IS UNEXHAUSTED AND SUBJECT TO DISMISSAL

A state prisoner must exhaust his state court remedies before a federal court may consider
granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838,
842 (1999). To satisfy the exhaustion requirement, a habeas petitioner must fairly present his
federal claims in the state courts in order to give the State the opportunity to pass upon and
correct alleged violations of the prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365
(1995) (per curiam). A habeas petitioner must give the state courts “one full opportunity” to
decide a federal claim by carrying out “one complete round” of the state’s appellate process in
order to properly exhaust a claim. O’Sullivan, 526 U.S. at 845.

2

The Court takes judicial notice of the California Court’s docket, pertaining to Mr. Thompson.
See Fed. R. Evid. 201 (providing that a court may take judicial notice of adjudicative facts that
“can be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned”); Harris v. Cnty. of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (noting that a
court may take judicial notice of federal and state court records).
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For a petitioner in California state custody, this generally means that the petitioner must
have fairly presented his claims in a petition to the California Supreme Court. Gatlin v.
Madding, 189 F.3d 882, 888 (9th Cir. 1999) (applying O’Sullivan to California). A claim has
been fairly presented if the petitioner has both “adequately described the factual basis for [the]
claim” and “identified the federal legal basis for [the] claim.” Id. at 888.
Here, there is no indication that Mr. Thompson petitioned the California Supreme Court.
Accordingly, at this time, Mr. Thompson’s Petition appears to be unexhausted and subject to
dismissal.
IV.

ORDER

Mr. Thompson is therefore ORDERED TO SHOW CAUSE why the Petition should not
be dismissed for failure to exhaust state remedies by filing a written response no later than
December 21, 2017. Mr. Thompson must respond to this Order pursuant to one of the options
listed below.
Option 1: Mr. Thompson May Explain The Petition Is Exhausted: If Mr. Thompson
contends he has, in fact, exhausted his state court remedies on the grounds raised in his Petition,
he should clearly explain this in a written response to this Order to Show Cause. Mr. Thompson
should attach to his response copies of any documents establishing that grounds one through five
are indeed exhausted and have been raised with the California Supreme Court.
Option 2: Mr. Thompson May Request A Rhines Stay: Under Rhines v. Weber, 544
U.S. 269 (2005), the District Court has discretion to stay a petition to allow Mr. Thompson time
to present his unexhausted claims to state courts, including the California Supreme Court. Id. at
276; Mena v. Long, No. 14-55102, (9th Cir. Feb. 17, 2016) (holding the Rhines stay-and-abeyance
procedure applies to both mixed and fully unexhausted habeas petitions). This stay and abeyance
procedure is called a “Rhines stay” and is available only when: (1) there is “good cause” for the
failure to exhaust; (2) the unexhausted claims are not “plainly meritless”; and (3) the petitioner
did not intentionally engage in dilatory litigation tactics. Rhines, 544 U.S. at 277-78.
Mr. Thompson may file a motion for a Rhines stay and support his request by showing:
(1) there is “good cause” for the failure to exhaust; (2) the grounds raised are not “plainly
meritless”; and (3) Mr. Thompson did not intentionally engage in dilatory litigation tactics. See
id. Mr. Thompson should include any evidence supporting his request for a Rhines stay.
Option 3: Mr. Thompson May Voluntarily Dismiss Action Without Prejudice: Mr.
Thompson may request a voluntary dismissal of this action without prejudice under Federal Rule
of Civil Procedure 41(a). A Notice of Dismissal form is attached for Mr. Thompson’s
convenience. The Court advises Mr. Thompson, however, that if he should later attempt to
again raise any dismissed claims in a subsequent habeas petition, those claims may be time-barred
under the statute of limitations in 28 U.S.C. § 2244(d)(1). 28 U.S.C. § 2244(d)(1) (“A 1-year

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period of limitation shall apply to an application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court.”).
Caution: Mr. Thompson is cautioned that if he requests a stay, under Option 2, and the
Court denies the request for a stay, or if Mr. Thompson contends that he has in fact exhausted
his state court remedies on all grounds, under Option 1, and the Court disagrees, the Court will
dismiss the Petition for failure to exhaust state remedies. Accordingly, Mr. Thompson may
select options in the alternative, which means that he can ask for Option 1, but if that is not
met, Option 2.
The Court expressly warns Mr. Thompson that failure to timely file a response to
this Order will result in the Court dismissing this action with prejudice for his failure to
comply with court orders and failure to prosecute. Fed. R. Civ. P. 41(b).
The Clerk of Court is directed to serve a copy of this Order on Mr. Thompson at his
current address of record.
IT IS SO ORDERED.

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