Brown v. Grounds

Filing 8

ORDER GRANTING MOTION TO RE-OPEN CASE; ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST STATE REMEDIES by Judge Lucy H. Koh granting 5 Motion for Reconsideration (Attachments: # 1 Certificate/Proof of Service) (mpbS, COURT STAFF) (Filed on 3/24/2014)

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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 11 TOMMY BROWN, 12 13 14 15 Petitioner, v. WARDEN RANDY GROUNDS, Respondent. ) ) ) ) ) ) ) ) ) ) No. C 13-4424 LHK (PR) ORDER GRANTING MOTION TO RE-OPEN CASE; ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST STATE REMEDIES (Docket No. 5) 16 Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254. On November 5, 2013, the court dismissed this action for 18 failure to pay the filing fee or file a completed application for leave to proceed in forma pauperis. 19 On November 26, 2013, the court received the $5.00 filing fee, along with the receipt indicating 20 that petitioner had timely paid the filing fee on October 29, 2013. Thus, petitioner’s motion to 21 re-open this action is GRANTED. The court issues an order to show cause to petitioner to 22 demonstrate why the petition should not be dismissed without prejudice for failure to exhaust his 23 state court remedies. 24 BACKGROUND 25 In the underlying federal petition, petitioner challenges the criminal judgment against 26 him. Petitioner concedes that he has not raised any claims of his federal claims in the California 27 Supreme Court. 28 Order Granting Motion to Re-Open Case; Order to Show Cause Why Petition Should Not Be Dismissed for Failure to Exhaust State Remedies P:\PRO-SE\LHK\HC.13\Brown424reooscexh.wpd 1 2 DISCUSSION Prisoners in state custody who wish to collaterally challenge either the fact or length of 3 their confinement in federal habeas corpus proceedings are first required to exhaust state judicial 4 remedies, either on direct appeal or through collateral proceedings, by presenting the highest 5 state court available with a fair opportunity to rule on the merits of each and every claim they 6 seek to raise in federal court. 28 U.S.C. § 2254(b)-(c). 7 At the time petitioner filed the federal petition, it appeared that petitioner was 8 challenging his conviction based on “newly discovered evidence” and actual innocence. 9 Petitioner stated that he had filed a state habeas petition in the Superior Court, and indicated that 10 he had not exhausted his underlying claims in the California Supreme Court. Thus, this court 11 orders petitioner to show cause to demonstrate why the petition should not be dismissed without 12 prejudice to refiling once he exhausts his underlying federal claims in state court. 13 Petitioner shall file a response within thirty (30) days of the filing date of this order 14 addressing whether he has a habeas petition or other post-conviction proceeding now pending 15 before the state court, and if so, whether the underlying federal petition challenges the same 16 commitment at issue in his pending state case(s). If petitioner believes that he has presented his 17 underlying claims to the California Supreme Court, petitioner shall support this assertion with a 18 copy of the California Supreme Court’s order. Failure to file a timely response in conformity 19 with this order will result in the court dismissing the instant petition without prejudice for 20 failure to exhaust state court remedies. 21 Petitioner is reminded that he must keep the court and all parties informed of any change 22 of address by filing a separate paper captioned “Notice of Change of Address.” Petitioner must 23 also comply with the court’s orders in a timely fashion. Failure to do so may result in the 24 dismissal of this action for failure to prosecute. See Fed. R. Civ. Pro. 41(b). 25 26 27 IT IS SO ORDERED. 3/21/14 DATED: _______________ LUCY H. KOH United States District Judge 28 Order Granting Motion to Re-Open Case; Order to Show Cause Why Petition Should Not Be Dismissed for Failure to Exhaust State Remedies 2 P:\PRO-SE\LHK\HC.13\Brown424reooscexh.wpd

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