Lee v. Harris

Filing 3

ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO ALLEGE CLAIM EXHAUSTION IN STATE COURT. Show Cause Response due by 12/31/2015. Signed by Magistrate Judge Sallie Kim on 12/7/2015. (mklS, COURT STAFF) (Filed on 12/7/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHING LEE,

Case No. 15-cv-05316-SK
Plaintiff,

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v.
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KAMALA D. HARRIS,
Defendant.

United States District Court
Northern District of California

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ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED FOR
FAILURE TO ALLEGE CLAIM
EXHAUSTION IN STATE COURT
Regarding Docket No. 1

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On November 19, 2015, Petitioner Ching Lee filed a Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254. (Dkt. No. 1) The Petition states that on November 18, 2015, a

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petition was also filed with the California Supreme Court. (Id., ¶ IV.) A prerequisite for obtaining

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a writ of habeas corpus in federal court is the exhaustion of state court remedies. A claim is

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exhausted when the highest state court has had a fair opportunity to rule on it, either on direct

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appeal or through the post-conviction process. Justices of Boston Municipal Court v. Lydon, 466

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U.S. 294, 302 (1984). A claim is not exhausted unless it has been pursued and adjudicated

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through the highest state court with jurisdiction, including courts with jurisdiction to conduct a

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discretionary review. O’Sullivan v. Boerckel, 526 U.S. 842, 847 (1999).

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Petitioner has failed to allege exhaustion of state court remedies or otherwise seek relief

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from this Court to stay and hold his claim in abeyance while he returns to the state court to

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exhaust. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005). Accordingly, the Court ORDERS

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Petitioner to show cause as to why his Petition should not be dismissed.

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Petitioner is directed to file a response to this Order to Show Cause, by no later than

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December 31, 2015 and to simultaneously file any additional pleading necessary to preserve the

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Petition in federal court.

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IT IS SO ORDERED.
Dated: December 7, 2015
______________________________________
SALLIE KIM
United States Magistrate Judge

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United States District Court
Northern District of California

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