Lopez v. King

Filing 3

ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST STATE REMEDIES, Motions terminated: 2 MOTION to Support the Reason Why He Failed to Exhaust in the California Supreme Court filed by Elijah Samson Lopez.. Signed by Judge Lucy H. Koh on 11/28/12. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 11/29/2012)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 ) ) ) ) ) ) ) ) ) ) ELIJAH SAMSON LOPEZ, 11 Petitioner, 12 vs. 13 AUDREY KING, 14 Respondent. 15 No. C 12-5254 LHK (PR) ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST STATE REMEDIES (Docket No. 2) 16 Petitioner, a civilly committed person proceeding pro se, seeks a writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee. The Court issues an order to 18 show cause to Petitioner why the petition should not be dismissed without prejudice because he 19 has not exhausted his state court remedies.1 20 BACKGROUND 21 In 1993, Petitioner was released on parole. In 1997, Petitioner was discharged from 22 parole and was crime free for several years. In the underlying federal petition, Petitioner 23 challenges the 2004 decision to commit him under the Sexually Violent Predator Act. Petitioner 24 alleges that he filed a direct appeal with the California Court of Appeal. According to 25 Petitioner’s petition, however, that appeal is still pending. Petitioner concedes that he did not 26 27 1 28 Petitioner’s motion to support the reason why he failed to exhaust in the California Supreme Court is deemed filed. The Clerk shall terminate the motion. Order to Show Cause Why Petition Should Not Be Dismissed for Failure to Exhaust State Remedies G:\PRO-SE\SJ.LHK\HC.12\Lopez254oscexh.wpd 1 raise the underlying claims before the California Supreme Court. 2 3 DISCUSSION Prisoners in state custody who wish to collaterally challenge either the fact or length of 4 their confinement in federal habeas corpus proceedings are first required to exhaust state judicial 5 remedies, either on direct appeal or through collateral proceedings, by presenting the highest 6 state court available with a fair opportunity to rule on the merits of each and every claim they 7 seek to raise in federal court. 28 U.S.C. § 2254(b)-(c). The exhaustion requirement applicable 8 to federal habeas petitions is not satisfied if there is a pending post-conviction proceeding in 9 state court. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). If, for example, an 10 appeal of a state criminal conviction is pending, a would-be federal habeas petitioner must await 11 the outcome of his appeal before his state remedies are exhausted, even where the issue raised in 12 the petition has been finally settled in the state courts. Id. 13 Accordingly, the Court issues an order to show cause to Petitioner as to why the petition 14 should not be dismissed without prejudice to refiling once he exhausts his federal claims in state 15 court. Petitioner shall file a response within thirty (30) days of the filing date of this order 16 addressing: (1) whether he has a habeas petition, appeal, or other post-conviction proceeding 17 now pending before the state court; and, if so, (2) whether the underlying petition challenges the 18 same commitment at issue in his pending state case(s). Failure to file a timely response will 19 result in the Court dismissing the instant petition without prejudice for failure to exhaust 20 state court remedies. 21 It is Petitioner’s responsibility to prosecute this case. Petitioner must keep the Court and 22 all parties informed of any change of address by filing a separate paper captioned “Notice of 23 Change of Address.” He must comply with the Court’s orders in a timely fashion. Failure to do 24 so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 25 Civil Procedure 41(b). 26 27 28 IT IS SO ORDERED. 11/28/12 DATED: _______________ LUCY H. KOH United States District Judge Order to Show Cause Why Petition Should Not Be Dismissed for Failure to Exhaust State Remedies 2 G:\PRO-SE\SJ.LHK\HC.12\Lopez254oscexh.wpd

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