Moore v. People of the State of California

Filing 3

ORDER TO SHOW CAUSE. Answer due by 4/8/2016. Signed by Judge Hon. Lucy H. Koh on 3/8/2016. (sms, COURT STAFF) (Filed on 3/9/2016) (Additional attachment(s) added on 3/9/2016: # 1 Certificate/Proof of Service) (sms, COURT STAFF).

1

2
3

4

FILED

5

MAR DQ 2016

6

7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10
ALDEN LAMONT MOORE,

11
Petitioner,
12
vs.

13
RONALD DAVIS, Warden,
14
15

)
)
)
)
)
)
)
)
)

No. C 15-5511 LHK (PR)
ORDER TO SHOW CAUSE WHY
PETITION SHOULD NOT BE
DISMISSED FOR FAlLURE TO
EXHAUST STATE REMEDIES

Respondent.
__________________________)

16
Petitioner, a California state prisoner proceeding pro se, seeks a writ of habeas corpus
17

pursuant to 28 U.S.C. § 2254. 1 Petitioner has paid the filing fee. The court issues an order to

18
show cause for petitioner to demonstrate why the petition should not be dismissed without
19
prejudice because he has not exhausted his state court remedies.
20

BACKGROUND
21
In the underlying federal petition, petitioner challenges the criminal conviction he

22
sustained in 2006 in the Superior Court of Alameda County. Petitioner concedes that he has not

23
raised any claims in the California Supreme Court.
24
25
26

27
28

1

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Ronald Davis, the
current warden of San Quentin State Prison, where petitioner is currently incarcerated, is hereby
SUBSTITUTED as respondent.
Order to Show Cause Why Petition Should Not Be Dismissed for Failure to Exhaust State Remedies
P:\PRO-SE\LHK\HC.I5\Moore511 oscexh. 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

Petitioner has conceded that he has not presented the California Supreme Court with an

8

opportunity to rule on the merits of the claims he presents in the underlying federal habeas

9

petition. Thus, the court issues an order to show cause for petitioner to demonstrate why the

10

petition should not be dismissed without prejudice to refiling once he exhausts his federal claims

11

in state court.

12
13

CONCLUSION
Petitioner shall file a response to this order to show cause within thirty (30) days of the

14

filing date of this order addressing: (1) whether he has a state habeas petition, appeal, or other

15

post-conviction proceeding now pending before the state court; and, if so, (2) which level of

16

state court and whether the underlying petition challenges the same commitment at issue in his

17

pending state case(s). Failure to file a timely response will result in the court dismissing the

18

instant petition without prejudice for failure to exhaust state court remedies.

19

It is petitioner's responsibility to prosecute this case. Petitioner must keep the court and

20

all parties informed of any change of address by filing a separate paper captioned "Notice of

21

Change of Address." He must comply with the court's orders in a timely fashion. Failure to do

22

so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

23

Civil Procedure 41 (b).

24
25
26

IT IS SO ORDERED.
DATED:

3/ 'l; ~2D ( b

United States District Judge

27
28
Order to Show Cause Why Petition Should Not Be Dismissed for Failure to Exhaust State Remedies
P:\PRO-SE\LHK\HC.l5\Moore511 oscexh. wpd
2