Kendricks v. Macomber

Filing 5

ORDER to SHOW CAUSE 1 , signed by Magistrate Judge Gary S. Austin on 10/10/14: Thirty (30) Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TORRANCE KENDRICKS,
Petitioner,

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Case No. 1:14-cv-01496-GSA-HC
ORDER TO SHOW CAUSE

v.

(ECF No. 1)

JEFF MACOMBER,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

18 pursuant to 28 U.S.C. § 2254. He has consented to the jurisdiction of the Magistrate Judge
19 pursuant to 28 U.S.C. § 636(c).
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On September 21, 2014, Petitioner filed the instant Petition for writ of habeas corpus. He

21 raises the following two grounds for relief in his Petition: (1) “Diplomatic immunity from
22 prosecution by the State court;” and (2) “Denial of Petitioner’s right to appeal…by upholding the
23 trail court’s grant of appellant’s forced, coerced, and induced waiving of right to counsel.” (Pet.
24 at 5, ECF No. 1).
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DISCUSSION

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A petitioner who is in state custody and wishes to collaterally challenge his conviction by

28 a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1).

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1 The exhaustion doctrine is based on comity to the state court and gives the state court the initial
2 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501
3 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158,
4 1163 (9th Cir. 1988).
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A petitioner can satisfy the exhaustion requirement by providing the highest state court

6 with a full and fair opportunity to consider each claim before presenting it to the federal court.
7 Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971);
8 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest
9 state court was given a full and fair opportunity to hear a claim if the petitioner has presented the
10 highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis);
11 Kenney v. Tamayo-Reyes, 504 U.S. 1, 8-10 (1992) (factual basis).
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Additionally, the petitioner must have specifically told the state court that he was raising

13 a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666,
14 669 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th
15 Cir.1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998). In Duncan, the United States
16 Supreme Court reiterated the rule as follows:
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In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that
exhaustion of state remedies requires that petitioners "fairly
presen[t]" federal claims to the state courts in order to give the
State the "'opportunity to pass upon and correct alleged violations
of the prisoners' federal rights" (some internal quotation marks
omitted). If state courts are to be given the opportunity to correct
alleged violations of prisoners' federal rights, they must surely be
alerted to the fact that the prisoners are asserting claims under the
United States Constitution. If a habeas petitioner wishes to claim
that an evidentiary ruling at a state court trial denied him the due
process of law guaranteed by the Fourteenth Amendment, he must
say so, not only in federal court, but in state court.
Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating:

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Our rule is that a state prisoner has not "fairly presented" (and thus
exhausted) his federal claims in state court unless he specifically
indicated to that court that those claims were based on federal law.
See Shumway v. Payne,
223 F.3d 982, 987-88 (9th Cir.
2000). Since the Supreme Court's decision in Duncan, this court
has held that the petitioner must make the federal basis of the claim
explicit either by citing federal law or the decisions of federal
courts, even if the federal basis is “self-evident," Gatlin v.
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Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v.
Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim would be
decided under state law on the same considerations that would
control resolution of the claim on federal grounds. Hiivala v.
Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon,
88 F.3d 828, 830-31 (9th Cir. 1996); . . . .

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In Johnson, we explained that the petitioner must alert the state
court to the fact that the relevant claim is a federal one without
regard to how similar the state and federal standards for reviewing
the claim may be or how obvious the violation of federal law is.

7 Lyons v. Crawford, 232 F.3d 666, 668-669 (9th Cir. 2000).
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Upon review of the Petition, it appears that Petitioner has not sought review of the first

9 ground for relief in the California Supreme Court. Petitioner stated that the first ground for relief
10 “was not previously presented in state court due to the guidelines of an appellant direct appeal.”
11 (Pet. at 6). Petitioner has a pending petition for writ of habeas corpus in the Kern County
12 Superior Court. (Pet. at 3-4). If Petitioner has not sought relief in the California Supreme Court,
13 the Court cannot proceed to the merits of those claims. 28 U.S.C. § 2254(b)(1). It is possible,
14 however, that Petitioner has presented all of his claims to the California Supreme Court and
15 failed to indicate this to the Court. Thus, Petitioner must inform the Court whether each of his
16 claims has been presented to the California Supreme Court, and if possible, provide the Court
17 with a copy of the petition filed in the California Supreme Court that includes the claims now
18 presented and a file stamp showing that the petition was indeed filed in the California Supreme
19 Court.
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Moreover, if the Petition contains unexhausted and exhausted claims, it is a mixed

21 petition. See Rose, 455 U.S. at 520-22. The Court must dismiss a mixed petition without
22 prejudice to give Petitioner an opportunity to exhaust the claims if he can do so. See Id. at 52123 22. However, if a petition contains unexhausted claims, a petitioner may, at his option, withdraw
24 the unexhausted claims and go forward with the exhausted claims. Anthony v. Cambra, 236
25 F.3d 568, 574 (9th Cir. 2000) (“[D]istrict courts must provide habeas litigants with the
26 opportunity to amend their mixed petitions by striking unexhausted claims as an alternative to
27 suffering dismissal.”).
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A petitioner also may request that a court stay a petition either under Rhines v. Weber,

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1 544 U.S. 269, 276 (2005), or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). A petitioner may
2 move to withdraw the unexhausted claims and move to hold the petition in abeyance while the
3 unexhausted claims are exhausted in state court. See Kelly v. Small, 315 F.3d 1063 (9th Cir.
4 2003); Ford v. Hubbard, 305 F.3d 875 (9th Cir. 2002). However, such a request for a Kelly stay
5 will not be considered by the Court until the petition contains only exhausted claims and it is
6 clear that the petition is not barred by the statute of limitations. In light of the Antiterrorism and
7 Effective Death Penalty Act of 1996’s objectives, for a stay pursuant to Rhines, “stay and
8 abeyance [is] available only in limited circumstances” and “is only appropriate when the district
9 court determines there was good cause for the petitioner’s failure to exhaust his claims first in
10 state court.” Rhines, 544 U.S. at 277.
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ORDER

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Accordingly, IT IS HEREBY ORDERED that Petitioner is ORDERED to SHOW

14 CAUSE within thirty (30) days of the date of service of this Order why the Petition should not
15 be dismissed for failure to exhaust state remedies.
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Petitioner is forewarned that failure to follow this order will result in dismissal of the

17 petition pursuant to Fed. R. Civil Proc. § 41(b) (A petitioner’s failure to prosecute or to comply
18 with a court order may result in a dismissal of the action, and the dismissal operates as an
19 adjudication on the merits.).
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IT IS SO ORDERED.
Dated:

October 10, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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