David Upton v. Director of Corrections

Filing 3

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 19, 2010, Petitioner shall inform the Court in writing why this case should not be dismissed for failure to exhaust. Failure to timely file a response will result in a recommendation that this case be dismissed. (ca)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner has filed a separate habeas petition challenging the underlying convictions, which is still pending before the Court. (See Upton v. State of California, CV 07-1067-ABC (PJW).)
1

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DAVID UPTON, Petitioner, v. DIRECTOR OF CORRECTIONS, Respondent. ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 10-253-ABC (PJW) ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED

On February 19, 2010, Petitioner filed a Petition for Writ of Habeas Corpus, seeking to challenge the lawfulness of a parole revocation proceeding. According to the Petition, he was convicted of

being a felon in possession of a loaded firearm in January 2006 and sentenced to four years in custody.1 was released on parole. (Petition at 2.) Thereafter, he

In January 2010, his parole was revoked,

resulting in an eight-month sentence, which he is currently serving. (Petition, Exh. D.) In the Petition, he claims that constitutional

rights were violated in the January 2010 revocation proceedings. (Petition at 3-14.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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). Rose v. Lundy,

Indeed, the law governing habeas

petitions provides that a habeas 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 applicant." 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. 838, 842, 844-45 (1999). exhaust sua sponte. Cir. 1992.) In his Petition, Petitioner does not allege that he has presented any of his grounds for relief to the California Supreme Court. Further, a check of the California Appellate Courts' website does not show any filings since the date Petitioner's parole was revoked. Thus, it appears that the Petition is completely unexhausted and is subject to dismissal on that basis. 1150, 1154 (9th Cir. 2006). See Rasberry v. Garcia, 448 F.3d O'Sullivan v. Boerckel, 526 U.S.

A district court may raise a failure to

Stone v. San Francisco, 968 F.2d 850, 856 (9th

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IT IS THEREFORE ORDERED that, no later than March 19, 2010, Petitioner shall inform the Court in writing why this case should not be dismissed for failure to exhaust. Failure to timely file a

response will result in a recommendation that this case be dismissed.

DATED:

February 23, 2010.

PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE

S:\PJW\Cases-State Habeas\UPTON, D 253\OSC dismiss pet.wpd

3