Chavez v. Warden

Filing 5

ORDER to SHOW CAUSE signed by Magistrate Judge Stanley A. Boone on 9/6/17. Show Cause Response Due Within Thirty Days.(Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES CHAVEZ, Petitioner, 12 13 14 15 Case No. 1:17-cv-01045-SAB-HC ORDER TO SHOW CAUSE v. WARDEN, 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. Petitioner seeks to obtain the benefits of Proposition 57. 19 I. 20 DISCUSSION 21 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 22 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 23 to file a response, if it “plainly appears from the petition and any attached exhibits that the 24 petitioner is not entitled to relief in the district court.” 25 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 26 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 27 on comity to the state court and gives the state court the initial opportunity to correct the state’s 28 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 1 1 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 2 providing the highest state court with a full and fair opportunity to consider each claim before 3 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 4 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). Here, it appears that Petitioner has not raised his claim in the California Supreme Court. 5 6 (ECF No. 1 at 4–5).1 If Petitioner has not sought relief in the California Supreme Court, this 7 Court cannot proceed to the merits of his claim. 28 U.S.C. § 2254(b)(1). It is possible, however, 8 that Petitioner has presented his claim to the California Supreme Court and failed to indicate this 9 to the Court. Thus, Petitioner must inform the Court whether his claim has been presented to the 10 California Supreme Court, and if possible, provide the Court with a copy of the petition filed in 11 the California Supreme Court that includes the claim now presented and a file stamp showing 12 that the petition was indeed filed in the California Supreme Court. 13 II. 14 ORDER Accordingly, Petitioner is ORDERED to SHOW CAUSE within THIRTY (30) days 15 16 from the date of service of this order why the petition should not be dismissed for failure to 17 exhaust state court remedies. Petitioner is forewarned that failure to follow this order may result in dismissal of the 18 19 petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s failure to prosecute or 20 to comply with a court order may result in a dismissal of the action). 21 22 IT IS SO ORDERED. 23 Dated: September 6, 2017 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 2

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