Michael Yochem v. DAPO et al

Filing 5

ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED by Magistrate Judge Patrick J. Walsh. Response to Order to Show Cause due by 7/18/2011. See order for details. (jy)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MICHAEL YOCHEM,

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Petitioner,
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v.
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DAPO/CDCR/BPH,
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Respondents.
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CASE NO. EDCV 11-897-RGK (PJW)
ORDER TO SHOW CAUSE WHY PETITION
SHOULD NOT BE DISMISSED

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On June 10, 2011, Petitioner filed a Petition for Writ of Habeas

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Corpus, in which it appears that he is seeking to challenge the April

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2011 revocation of his parole.

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he claims that his requests to subpoena a favorable witness and to

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have his urine sample retested were improperly denied.

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alleges that he was denied the opportunity to cross-examine the

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arresting parole agent.

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(Petition at 2, 3.)

In the Petition,

He also

(Petition at 3-4.)

As a matter of comity between state and federal courts, a federal

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court generally will not address the merits of a habeas corpus

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petition unless the petitioner has first exhausted his state remedies,

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i.e., sought state court review of every ground presented in the

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petition by presenting it to the highest state court.

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455 U.S. 509, 518-22 (1982).

Rose v. Lundy,

Indeed, the law governing habeas

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petitions provides that a habeas petition brought by a person in state

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custody cannot be granted “unless it appears that--(A) the applicant

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has exhausted the remedies available in the courts of the State; or

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(B)(i) there is an absence of available State corrective process; or

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(ii) circumstances exist that render such process ineffective to

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protect the rights of the applicant.”

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exhaust state remedies, a petitioner must fairly present his

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contentions to the state courts, and the highest court of the state

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must dispose of them on the merits.

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28 U.S.C. § 2254(b)(1).

To

O’Sullivan v. Boerckel, 526 U.S.

838, 842, 844-45 (1999).

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In his Petition, Petitioner states that he raised his claims in

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an appeal filed in the San Bernardino County Superior Court, but did

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not seek review in the California Supreme Court.

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A check of the state appellate court website, at

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http://appellatecases.courtinfo.ca.gov, confirms that he has not

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presented these claims in a petition for review or in a habeas

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petition in the California Supreme Court.

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Petition is completely unexhausted and is subject to dismissal on that

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basis.

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Petitioner must first present his claims to the state supreme court,

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either through direct appeal or in a petition for habeas corpus, and

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have that court decide them on their merits before he can proceed in

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this Court.

(Petition at 5, 6.)

Thus, it appears that the

See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).

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IT IS THEREFORE ORDERED that, no later than July 18, 2011,

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Petitioner shall inform the Court in writing why this case should not

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be dismissed for failure to exhaust.

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Failure to timely file a

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response will result in a recommendation that this case be dismissed

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without prejudice to refiling once he has exhausted his claims.

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DATED: June ___17_____, 2011

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/S/ PATRICK J. WALSH
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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE

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S:\PJW\Cases-State Habeas\YOCHEM, M 897\OSC dismiss pet.wpd

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