Dynes v. CDCR

Filing 6

ORDER TO SHOW CAUSE, Motion to Proceed in Forma Pauperis Granted. Motions terminated: 5 MOTION for Leave to Proceed in forma pauperis filed by John Ray Dynes, 2 MOTION for Leave to Proceed in forma pauperis filed by John Ray Dynes. Signed by Judge Nandor J. Vadas on 5/19/2017. (Attachments: # 1 Certificate/Proof of Service)(njvlc1, COURT STAFF) (Filed on 5/19/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISON

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JOHN RAY DYNES,

Case No. 17-cv-1706-NJV (PR)

Petitioner,
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ORDER FOR PETITIONER TO SHOW
CAUSE

v.
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Docket Nos. 2, 5

CDCR,

United States District Court
Northern District of California

Respondent.
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Petitioner, a California prisoner filed a pro se petition for a writ of habeas corpus pursuant

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to 28 U.S.C. § 2254. Petitioner challenges a 1994 conviction in Alameda County, so venue is

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proper here. See 28 U.S.C. § 2241(d). Petitioner has submitted an application to proceed in forma

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pauperis and has consented to the jurisdiction of a Magistrate Judge.

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Petitioner seeks to be resentenced pursuant to Proposition 57. Petitioner states he filed a

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habeas petition in the Alameda County Superior Court; however, it does not appear that his claim

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was presented to the California Supreme Court. Prisoners in state custody who wish to challenge

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collaterally in federal habeas proceedings either the fact or length of their confinement are first

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required to exhaust state judicial remedies, either on direct appeal or through collateral

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proceedings, by presenting the highest state court available with a fair opportunity to rule on the

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merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c);

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Rose v. Lundy, 455 U.S. 509, 515-16 (1982).

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CONCLUSION

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1. Petitioner’s motion to proceed in forma pauperis (Docket Nos. 2, 5) is GRANTED.

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2. Petitioner must show cause within twenty-one (21) days, why this case should not be

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dismissed as unexhausted. Failure to file a response will result in this case being dismissed.

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3. Petitioner must keep the court informed of any change of address and must comply with

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the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for

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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson,

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104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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IT IS SO ORDERED.
Dated: May 19, 2017
________________________
NANDOR J. VADAS
United States Magistrate Judge

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United States District Court
Northern District of California

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