Kelley v. Corcoran State Prison

Filing 4

ORDER to SHOW CAUSE, signed by Magistrate Judge Erica P. Grosjean on 3/9/17. Show Cause Response Due Within Thirty Days. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICK D. KELLEY, JR., Petitioner, 12 13 14 15 Case No. 1:17-cv-00278- EPG-HC ORDER TO SHOW CAUSE v. CORCORAN STATE PRISON, Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254 wherein he challenges the California Department of Corrections 19 and Rehabilitation’s calculation of his sentence. 20 I. 21 DISCUSSION 22 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 23 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 24 to file a response, if it “plainly appears from the petition and any attached exhibits that the 25 petitioner is not entitled to relief in the district court.” A petitioner in state custody who is 26 proceeding with a petition for writ of habeas corpus must exhaust state judicial remedies. 28 27 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the 28 state court the initial opportunity to correct the state’s alleged constitutional deprivations. 1 1 Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). A 2 petitioner can satisfy the exhaustion requirement by providing the highest state court with a full 3 and fair opportunity to consider each claim before presenting it to the federal court. O’Sullivan v. 4 Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. 5 Connor, 404 U.S. 270, 276 (1971). If Petitioner has not sought relief in the California Supreme Court for the claim that he 6 7 raises in the instant petition, the Court cannot proceed to the merits of that claim. 28 U.S.C. 8 § 2254(b)(1). Here, it appears that Petitioner has not presented his claim to any state court. (ECF 9 No. 1 at 8–9).1 It is possible, however, that Petitioner has presented his claim to the California 10 Supreme Court and failed to indicate this to the Court. Thus, Petitioner must inform the Court 11 whether his claim has been presented to the California Supreme Court, and if possible, provide 12 the Court with a copy of the petition filed in the California Supreme Court that includes the 13 claim now presented and a file stamp showing that the petition was indeed filed in the California 14 Supreme Court. 15 II. 16 ORDER Accordingly, IT IS HEREBY ORDERED that Petitioner shall show cause why the 17 18 petition should not be dismissed for failure to exhaust state court remedies within THIRTY (30) 19 days from the date of service of this order. Petitioner is forewarned that failure to follow this order may result in dismissal of the 20 21 petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s failure to prosecute or 22 to comply with a court order may result in a dismissal of the action). 23 24 IT IS SO ORDERED. 25 Dated: March 9, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 26 27 28 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 2

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