Mullins v. Board of Parole Hearings

Filing 14

ORDER FOR PETITIONER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST. Signed by Judge Phyllis J. Hamilton on 4/14/10. (Attachments: # 1 Certificate of Service)(nah, COURT STAFF) (Filed on 4/14/2010)

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1 2 3 4 5 6 7 8 9 10 vs. BOARD OF PAROLE HEARINGS, Respondent. / JASON MULLINS, Petitioner, No. C 07-2927 PJH (PR) ORDER FOR PETITIONER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA United United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is a habeas corpus case filed pro se by a state prisoner. Because it appeared from the petition that petitioner might have intended to file in the California Supreme Court rather than this court, petitioner was ordered to file a statement saying which court was intended. He has responded, saying that he intended to file here. The petition is directed to revocation of petitioner's parole. Although petitioner has attached a ruling on his state habeas petition by the California Superior Court for Marin County, he has checked the "no" box next to a question asking if he has filed any petitions other than this one. A search of the state appellate courts' website suggests that he has had no cases in the California appellate courts. If so, these claims are not exhausted. An application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court may not be granted unless the prisoner has first exhausted state judicial remedies, either by way of a direct appeal or in collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every issue he or she seeks to raise in federal court. See 28 U.S.C. 2254(b),(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Petitioner has the burden of pleading exhaustion in his habeas petition. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). Petitioner here has not done so. 1 2 3 4 5 6 7 8 9 10 Petitioner shall show cause within thirty days of the date this order is entered why this case should not be dismissed for failure to exhaust. If he does not respond, or if he cannot show that his claims are exhausted, the case will be dismissed. IT IS SO ORDERED. Dated: April 14, 2010. PHYLLIS J. HAMILTON United States District Judge United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P:\PRO-SE\PJH\HC.07\MULLINS927.osc-P.wpd 2

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