Brooks v. San Mateo County Superior Court

Filing 8

ORDER TO SHOW CAUSE BY APRIL 11, 2016 WHY THE PETITION SHOULD NOT BE DISMISSED. Signed by Judge Richard Seeborg on 3/1/16. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 3/1/2016)

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*E-Filed 3/1/16*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

United States District Court
For the Northern District of California

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CHARLES ANTHONY BROOKS,

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No. C 15-4877 RS (PR)

Petitioner,

ORDER TO SHOW CAUSE BY APRIL
11, 2016 WHY THE PETITION
SHOULD NOT BE DISMISSED

v.
SAN MATEO SUPERIOR COURT,

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Respondent.

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/

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On or before April 11, 2016, petitioner must show cause why this federal habeas

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action should not be dismissed for failing to exhaust his claims before filing suit. If he fails

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to do so, the action will be dismissed under Federal Rule of Civil Procedure 41(b) for failure

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to prosecute.

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Prisoners in state custody who wish to challenge collaterally in federal habeas

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proceedings either the fact or length of their confinement are first required to exhaust state

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judicial remedies, either on direct appeal or through collateral proceedings, by presenting the

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highest state court available with a fair opportunity to rule on the merits of each and

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every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy,

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455 U.S. 509, 515–16 (1982). In fact, a federal district court may not grant the writ unless

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No. C 15-4877 RS (PR)
ORDER TO SHOW CAUSE

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state court remedies are exhausted or there is either “an absence of available state corrective

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process” or such process has been “rendered ineffective.” See 28 U.S.C. § 2254(b)(1)(A)–

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(B). If available state remedies have not been exhausted as to all claims, the district court

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must dismiss the petition. See Lundy, 455 U.S. at 510.

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Petitioner seeks federal habeas relief from his state convictions. According to the

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petition, he has pending state habeas petitions challenging the same convictions as issue here,

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however. (Pet. at 3–4.) Because his habeas claims are pending in state court, they are

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unexhausted and therefore are subject to dismissal. Lundy, 455 U.S. at 510.

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Petitioner may avoid dismissal if he can show that he is entitled to a stay of the action.

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Prisoners who may run the risk of having the federal statute of limitations expire while they

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are exhausting their state remedies may avoid this predicament “by filing a ‘protective’

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petition in federal court and asking the federal court to stay and abey the federal habeas

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proceedings until state remedies are exhausted.” Pace v. DiGuglielmo, 544 U.S. 408, 416

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(2005) (citing Rhines v. Webber, 544 U.S. 269, 277–78 (2005)). A federal court may stay a

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petition that raises only unexhausted claims. Mena v. Long, No. 14-55102, 2016 WL

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62540516, *1 (9th Cir. Feb. 17, 2016). A stay is “appropriate when the district court

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determines there was good cause for the petitioner’s failure to exhaust his claims first in state

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court,” the claims are not meritless, and there are no intentionally dilatory litigation tactics by

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the petitioner. Rhines, 544 U.S. at 277–78.

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The Court notes petitioner has provided updated information on his ability to pay the

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filing fee, which the Court construes as a renewed motion to proceed in forma pauperis

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(“IFP”). Because this new information shows that petitioner lacks the current ability to pay

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the filing fee, his motion to proceed IFP is GRANTED.

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IT IS SO ORDERED.
DATED: March 1, 2016
RICHARD SEEBORG
United States District Judge

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No. C 15-4877 RS (PR)
ORDER TO SHOW CAUSE