Barger v. Director of Operations of CDCR

Filing 5

ORDER to SHOW CAUSE signed by Magistrate Judge Stanley A. Boone on 08/17/2017. (Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 GARY DALE BARGER aka GARY FRANCIS FISHER, Case No. 1:17-cv-01067-SAB-HC ORDER TO SHOW CAUSE 11 Petitioner, 12 13 14 v. DIRECTOR OF OPERATIONS OF CDCR, Respondent. 15 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 alleges that the California Department of Corrections 19 and Rehabilitation is using false information regarding a second strike to extend Petitioner’s 20 release date. 21 I. 22 DISCUSSION 23 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 24 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 25 to file a response, if it “plainly appears from the petition and any attached exhibits that the 26 petitioner is not entitled to relief in the district court.” 27 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 28 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 1 1 on comity to the state court and gives the state court the initial opportunity to correct the state’s 2 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 3 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 4 providing the highest state court with a full and fair opportunity to consider each claim before 5 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 6 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). Here, there is no indication whether Petitioner has raised his claims in the California 7 8 Supreme Court. If Petitioner has not sought relief in the California Supreme Court, this Court 9 cannot proceed to the merits of his claims. 28 U.S.C. § 2254(b)(1). It is possible, however, that 10 Petitioner has presented all of his claims to the California Supreme Court and failed to indicate 11 this to the Court. Thus, Petitioner must inform the Court whether each of his claims has been 12 presented to the California Supreme Court, and if possible, provide the Court with a copy of the 13 petition filed in the California Supreme Court that includes the claims now presented and a file 14 stamp showing that the petition was indeed filed in the California Supreme Court. 15 II. 16 ORDER Accordingly, IT IS HEREBY ORDERED that Petitioner is ORDERED to SHOW 17 18 CAUSE within THIRTY (30) days from the date of service of this order why the petition should 19 not be dismissed for failure to exhaust state court remedies. 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: August 17, 2017 UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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