Mendoza v. Frauenheim

Filing 8

ORDER TO SHOW CAUSE. Petitioner's response due by 9/3/2014. Signed by Magistrate Judge Nandor Vadas on 8/20/14. (njvlc1, COURT STAFF) (Filed on 8/20/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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ROBERTO ANTONIO MENDOZA,
Petitioner,

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vs.

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ORDER FOR PETITIONER TO
SHOW CAUSE

S. FRAUENHEIM,
Respondent.

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For the Northern District of California

United States District Court

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No. C 14-3446 NJV (PR)

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Petitioner, a state prisoner, filed a pro se petition for a writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. (Doc. 5.) Petitioner was convicted in Contra Costa County,
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which is in this district, therefore venue is proper here. See 28 U.S.C. § 2241(d). Petitioner
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paid the filing fee.
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BACKGROUND
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A jury convicted petitioner of several counts of sexual acts with a child. He was
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sentenced to 104 year to life in prison.
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DISCUSSION
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A.

Standard of Review

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This court may entertain a petition for writ of habeas corpus "in behalf of a person in
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custody pursuant to the judgment of a State court only on the ground that he is in custody
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in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §
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2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet
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heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An
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application for a federal writ of habeas corpus filed by a prisoner who is in state custody
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pursuant to a judgment of a state court must “specify all the grounds for relief available to
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the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules

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Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the

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petition is expected to state facts that point to a ‘real possibility of constitutional error.’”

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Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.

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1970)). “Habeas petitions which appear on their face to be legally insufficient are subject

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to summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102,

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1108 (9th Cir. 1996) (Schroeder, J., concurring).

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B.

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Legal Claims
The California Court of Appeal affirmed the judgment and denied a habeas petition

on August 22, 2013. People v. Mendoza, 2013 WL 4509974 (Cal. App. 1 Dist., 2013).
Petitioner has filed a request for a stay and he states he is exhausting state remedies as

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For the Northern District of California

United States District Court

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his appellate attorney failed to file a petition for review in the California Supreme Court and

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he states a petition is pending. Court records indicate that a petition in case S219852 was

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filed on July 10, 2014, with the California Supreme Court.

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Before he may challenge either the fact or length of his confinement in a habeas

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petition in this court, petitioner must present to the California Supreme Court any claims he

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wishes to raise in this court. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every

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claim raised in federal habeas petition must be exhausted). The general rule is that a

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federal district court must dismiss a federal habeas petition containing any claim as to

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which state remedies have not been exhausted. Id.

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A fully unexhausted federal habeas petition may not be stayed and must be

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dismissed. See, e.g., Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (holding

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that a fully unexhausted petition may not be stayed and observing: “Once a district court

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determines that a habeas petition contains only unexhausted claims, it need not inquire

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further as to the petitioner's intentions. Instead, it may simply dismiss the habeas petition

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for failure to exhaust.”); Jones v. McDaniel, 320 Fed. Appx. 784, 786 (9th Cir.2009)

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(affirming the dismissal of a fully unexhausted petition and denial of a stay, because a

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“Rhines stay is only available for a mixed habeas petition where at least some of the claims

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have been exhausted, and none of [petitioner's] claims were exhausted”). It appears that
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petitioner has presented a fully unexhausted petition. If this is correct, the petition must be

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dismissed without prejudice and may be re-filed once the claims have been exhausted.

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However, petitioner will be provided an opportunity to demonstrate that some of the claims

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have already been exhausted.

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CONCLUSION
Petitioner shall show cause within fourteen (14) days of the date of service of this

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order why this petition should not be dismissed without prejudice as unexhausted. Failure

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to file a response within the designated time will result in the dismissal of this action.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: August 20, 2014.

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NANDOR J. VADAS
United States Magistrate Judge

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G:\PRO-SE\NJV\HC.14\Mendoza3446.osc-p.wpd

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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EUREKA DIVISION

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Petitioner,

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CERTIFICATE OF SERVICE

v.

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For the Northern District of California

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United States District Court

No.1:14-CV-3446 NJV

ROBERTO ANTONIO MENDOZA,

S. FRAUENHEIM,

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Respondent.

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I, the undersigned, hereby certify that on August 20, 2014, I served a true and correct copy
of the attached by placing said copy in a postage paid envelope addressed to the person(s) listed
below, by depositing said envelope in the U.S. Mail.

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Roberto Antonio Mendoza
CDCR # AH-2211
Pleasant Valley State Prison
A3-215
P.O. Box 8500
Coalinga, CA 93210

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/s/ Linn Van Meter
Linn Van Meter
Administrative Law Clerk to the
Honorable Nandor J. Vadas

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