Jones v. Swarthout

Filing 9

ORDER to SHOW CAUSE signed by Magistrate Judge Edmund F. Brennan on 12/12/11 ORDERING that within 30 days from this order, petitioner shall show cause for his failure to exhaust state remedies with respect to the claims contained in his 10/28/11 amended petition or obtain from the respondent an express waiver of the exhaustion requirement. Petitioners failure to comply with this order will result in a recommendation that this action be dismissed for failure to exhaust state remedies.(Dillon, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

MICHAEL C. JONES,
Petitioner,

11
12
13

vs.
GARY SWARTHOUT,
Respondents.

14

17
18

ORDER
/

15
16

No. CIV S-11-1497 KJM EFB P

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28
U.S.C. § 2254. Petitioner has paid the filing fee.
By order dated October 19, 2011, the petition was dismissed with leave to amend.

19

Petitioner filed an amended petition on October 28, 2011. Therein, petitioner challenges a

20

decision by the California Board of Parole Hearings (“Board”) to deny him parole for five years

21

at a parole consideration hearing. The date of the hearing is not specified in the petition. Dckt.

22

No. 1 at 4-6.1 Petitioner claims that the Board’s decision violated his right to due process, his

23

Sixth Amendment right to trial by jury, his First Amendment right to the free exercise of

24

religion, and his First Amendment right to “free speech.” Id. The court has reviewed the

25
1

26

For ease of reference, all references to page numbers in the petition are to those
assigned via the court’s electronic filing system.
1

1

petition pursuant to Rule 4 of the Rules Governing § 2254 Cases, and for the reasons explained

2

below, it appears that petitioner has failed to exhaust the available state remedies with respect to

3

any of his claims. Therefore, he must demonstrate good cause for this failure or obtain consent

4

from the respondent to proceed despite his failure to exhaust.

5

A district court may not grant a petition for a writ of habeas corpus unless “the applicant

6

has exhausted the remedies available in the courts of the State,” or unless there is no State

7

corrective process or “circumstances exist that render such process ineffective to protect the

8

rights of the applicant.” 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion

9

requirement by presenting the “substance of his federal habeas corpus claim” to the state courts.

10

Picard v. Connor, 404 U.S. 270, 278 (1971) (no exhaustion where the petitioner presented

11

operative facts but not legal theory to state courts); see also Duncan v. Henry, 513 U.S. 364, 365

12

(1995)(to exhaust a claim, a state court “must surely be alerted to the fact that the prisoners are

13

asserting claims under the United States Constitution”). Unless the respondent specifically

14

consents to the court entertaining unexhausted claims, a petition containing such claims must be

15

dismissed. See 28 U.S.C. § 2254(b)(3); Picard, 404 U.S. at 275. A claim is unexhausted if any

16

state remedy is available. See O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (petitioner must

17

seek discretionary review from state court of last resort); Roberts v. Arave, 874 F.2d 528, 529

18

(9th Cir. 1988)(no exhaustion where state supreme court referred petitioner’s appeal of trial

19

court’s denial of post-conviction relief to lower appellate court and petitioner failed to appeal

20

lower court’s disposition of that appeal to state supreme court). For a California prisoner to

21

exhaust, he must present his claims to the California Supreme Court on appeal in a petition for

22

review or on post-conviction in a petition for a writ of habeas corpus. See Carey v. Saffold, 536

23

U.S. 223, 239-40 (2002) (describing California’s habeas corpus procedure); Gatlin v. Madding,

24

189 F.3d 882, 888 (9th Cir. 1999) (to exhaust, prisoner must present claims on appeal to

25

California Supreme Court in a petition for review).

26

////
2

1

In the amended petition, petitioner indicates that only post-conviction challenge he filed

2

in state court was a direct appeal from his judgment of conviction. There is no indication on the

3

habeas form that petitioner challenged the Board’s suitability decision in any state court.

4

Therefore, it appears that petitioner has failed to exhaust the available state remedies with

5

respect to any of the claims contained in the amended petition before this court. In order to

6

proceed, petitioner must show cause for this failure or obtain from the respondent an express

7

waiver of the exhaustion requirement.

8
9

Accordingly, it is ORDERED that, within thirty days from this order, petitioner shall
show cause for his failure to exhaust state remedies with respect to the claims contained in his

10

October 28, 2011 amended petition or obtain from the respondent an express waiver of the

11

exhaustion requirement. Petitioner’s failure to comply with this order will result in a

12

recommendation that this action be dismissed for failure to exhaust state remedies.

13

Dated: December 12, 2011.

14
15
16
17
18
19
20
21
22
23
24
25
26
3