Quiroga v. United States of America

Filing 12

ORDER to SHOW CAUSE signed by Magistrate Judge Erica P. Grosjean on 11/6/2017. Show Cause Response due by 12/11/2017.(Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MONICO J. QUIROGA, III, Petitioner, 12 13 14 15 Case No. 1:17-cv-01301- LJO-EPG-HC ORDER TO SHOW CAUSE v. UNITED STATES OF AMERICA, 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 appears to challenge his 2016 Kern County Superior 19 Court conviction. 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.” 26 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 27 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 28 on comity to the state court and gives the state court the initial opportunity to correct the state’s 1 1 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 2 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 3 providing the highest state court with a full and fair opportunity to consider each claim before 4 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 5 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). If Petitioner has not sought relief in the California Supreme Court for the claims that he 6 7 raises in the instant petition, the Court cannot proceed to the merits of those claims. 28 U.S.C. 8 § 2254(b)(1). Here, Petitioner states that he sought relief for his claims by filing complaints with: 9 the Kern County Sheriff’s Office (ECF No. 1 at 2, 20–22, 25)1; the Bakersfield Police 10 Department (ECF No. 1 at 3, 48); and the Kern County Grand Jury (ECF No. 1 at 3, 52). The 11 Court also notes that the attachments to the petition demonstrate that Petitioner also filed letters 12 with the Los Angeles County Civil Grand Jury, the United States Department of Justice’s Civil 13 Rights Division, the Office of the Attorney General, and the Office of the Inspector General. 14 (ECF No. 1 at 31–34, 36–40, 44–46, 53). Petitioner also filed a state habeas petition in the Kern 15 County Superior Court. (ECF No. 1 at 6, 56). Although Petitioner has sought relief with various entities, it appears that Petitioner has 16 17 not presented any of his claims to the California Supreme Court. (ECF No. 1 at 5–6). It is 18 possible, however, that Petitioner has presented his claims to the California Supreme Court and 19 failed to indicate this to the Court. Thus, Petitioner must inform the Court whether his claims 20 have been presented to the California Supreme Court, and if possible, provide the Court with a 21 copy of the petition filed in the California Supreme Court that includes the claims now presented 22 and a file stamp showing that the petition was indeed filed in the California Supreme Court. 23 II. 24 ORDER Accordingly, IT IS HEREBY ORDERED that Petitioner shall show cause why the 25 26 petition should not be dismissed for failure to exhaust state court remedies within THIRTY (30) 27 days from the date of service of this order. 28 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 2 1 Petitioner is forewarned that failure to follow this order may result in dismissal of the 2 petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s failure to prosecute or 3 to comply with a court order may result in a dismissal of the action). 4 5 6 IT IS SO ORDERED. Dated: November 6, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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