Miguel A. Esquivias v. Warden

Filing 4

MINUTES (IN CHAMBERS) ORDER TO SHOW CAUSE RE: MIXED PETITION by Magistrate Judge Steve Kim.Therefore, Petitioner is ORDERED TO SHOW CAUSE on or before April 9, 2018 why the Court should not dismiss the Petition for failure to exhaust state court re medies as to each claim presented. Petitioner may satisfy and discharge this Order to Show Cause by providing evidence that, despite what appears on the face of the Petition, he has fully exhausted all claims or by filing an amended petition that deletes his unexhausted claims. An amended petition should be entitled First Amended Petition, contain only the exhausted claims, and be complete in itself without reference to the original petition. If Petitioner does not file a timely response to this Order to Show Cause, Petitioner is advised that the Court will recommend involuntary dismissal of the Petition for failure to prosecute and/or obey court orders. See Fed. R. Civ. P 41(b); L.R. 41-1. If Petitioner no longer wishes to pursue t his action or seeks to return to state court to fully exhaust within the time allowed by the statute of limitations, he may voluntarily dismiss the action without prejudice pursuant to Federal Rule of Civil Procedure 41(a) by filing a Notice of Dismissal. The Clerk is directed to provide Petitioner with a Notice of Voluntary Dismissal Form CV-009. (SEE ORDER FOR DETAILS). (Attachments: # 1 Notice of Dismissal CV-009) (clee)

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

2:18-cv-01794-AB (SK)

Title

Miguel A. Esquivias v. Warden

Present: The Honorable

Date

March 8, 2018

Steve Kim, U.S. Magistrate Judge

Connie Lee

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 2, 2018, Petitioner filed a Petition under 28 U.S.C. § 2254 raising four claims.
(ECF No. 1). But Petitioner acknowledges that claims three and four—that trial counsel was
ineffective by failing to object to a jury instruction about gang evidence and that the police
interrogation violated Petitioner’s Fifth Amendment rights—have yet to be exhausted in the
California state courts. (ECF No. 1 at 7).
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 claim presented in the
federal petition. See 28 U.S.C. § 2254(b)(1)(A). To satisfy the exhaustion requirement, a
habeas petitioner must “fairly present” his federal claim to the state courts, that is, give them a
fair opportunity to consider and correct alleged violations of the petitioner’s federal rights. See
Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); 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 exhaust his federal claims in a complete round of direct appeals or
state habeas proceedings up to and including the California Supreme Court. See Baldwin v.
Reese, 541 U.S. 27, 29 (2004).
If a federal petition contains both exhausted and unexhausted claims, it is deemed a
mixed petition that must be dismissed. See Rose v. Lundy, 455 U.S. 509, 518–19 (1982).
Therefore, a habeas action with a mixed petition cannot proceed unless either the petition is
amended to strike the unexhausted claims, see Butler v. Long, 752 F.3d 1177, 1180 (9th Cir.
2014), or a stay of the action is obtained by satisfying the requirements of Rhines v. Weber, 544
U.S. 269 (2005). A Rhines stay is “available only in limited circumstances,” id. at 270, where
the petitioner “had good cause for his failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner engaged in intentionally dilatory
litigation tactics.” Id. at 278. Alternatively, if the statute of limitations under 28 U.S.C. §
2244(d) has not lapsed, a petitioner remains free to voluntarily dismiss the mixed petition
without prejudice, return to state court to fully exhaust his claims, and then file a fullyexhausted petition before the expiration of the limitations period. See Rose, 455 U.S. at 518.
CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 1 of 2

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

2:18-cv-01794-AB (SK)

Date

Title

March 8, 2018

Miguel A. Esquivias v. Warden

Therefore, Petitioner is ORDERED TO SHOW CAUSE on or before April 9, 2018
why the Court should not dismiss the Petition for failure to exhaust state court remedies as to
each claim presented. Petitioner may satisfy and discharge this Order to Show Cause by
providing evidence that, despite what appears on the face of the Petition, he has fully
exhausted all claims or by filing an amended petition that deletes his unexhausted claims. An
amended petition should be entitled First Amended Petition, contain only the exhausted
claims, and be complete in itself without reference to the original petition.
If Petitioner does not file a timely response to this Order to Show Cause,
Petitioner is advised that the Court will recommend involuntary dismissal of the
Petition for failure to prosecute and/or obey court orders. See Fed. R. Civ. P 41(b);
L.R. 41-1.
If Petitioner no longer wishes to pursue this action or seeks to return to
state court to fully exhaust within the time allowed by the statute of limitations,
he may voluntarily dismiss the action without prejudice pursuant to Federal Rule
of Civil Procedure 41(a) by filing a “Notice of Dismissal.” The Clerk is directed to
provide Petitioner with a Notice of Voluntary Dismissal Form CV-009.

CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 2 of 2