1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JOSE MANUEL LOPEZ, ) CASE NO. CV 19-7558-SVW (PJW) ) 11 Petitioner, ) ORDER TO SHOW CAUSE WHY PETITION ) SHOULD NOT BE DISMISSED 12 v. ) ) 13 SCOTT KERNAN, SECRETARY, CDCR, ) ET AL., ) 14 ) Respondents. ) 15 )) ) 16 17 On August 30, 2019, Petitioner filed a Petition for Writ of 18 Habeas Corpus, in which he challenges the sentence of 17 years to life 19 that was imposed in 1991 in the Los Angeles County Superior Court 20 after he was convicted on two counts of attempted first degree murder. 21 (Petition at 1.) He appears to contend that under a change of law in 22 California he is now considered a “youthful offender” who is entitled 23 to have his sentence reconsidered by the trial court.1 24 25 26 27 1 Petitioner’s additional argument regarding his claim, which he 28 states is continued in section “6.b.” (Petition at 3), is unfortunately missing from the Court’s copy of the Petition. 1 From the face of the Petition, it appears that his claim is 2 unexhausted. As such, absent further explanation from Petitioner, the 3 Petition will be dismissed. 4 As a matter of comity between state and federal courts, a federal 5 court generally will not address the merits of a habeas corpus 6 petition unless the petitioner has first exhausted his state remedies, 7 i.e., sought state court review of every ground presented in the 8 petition by presenting it to the highest state court. Rose v. Lundy, 9

(1982). Indeed, the law provides that a habeas 10 petition brought by a person in state custody cannot be granted 11 “unless it appears that--(A) the applicant has exhausted the remedies 12 available in the courts of the State; or (B)(I) there is an absence of 13 available State corrective process; or (ii) circumstances exist that 14 render such process ineffective to protect the rights of the 15 applicant.”

(b)(1). To exhaust state remedies, a 16 petitioner must fairly present his contentions to the state courts, 17 and the highest court of the state must dispose of them on the merits. 18 O’Sullivan v. Boerckel,

(1999). A district 19 court may raise a failure to exhaust sua sponte. Stone v. San 20 Francisco,

, 856 (9th Cir. 1992.) 21 Although Petitioner alleges that he presented his claims of trial 22 error to the California Court of Appeal and California Supreme Court 23 on direct appeal (Petition at 5), it does not appear that he has 24 raised his sentencing claim in the state supreme court. As such, the 25 Petition is completely unexhausted and is subject to dismissal on that 26 basis. See Rasberry v. Garcia,

(9th Cir. 2006). 27 IT IS THEREFORE ORDERED that, no later than October 7, 2019, 28 Petitioner shall inform the Court in writing why this case should not 2 1 be dismissed for the reasons set forth above. Failure to timely file response will result in dismissal. 3 DATED: September 6, 2019 flexed 9 Ur%o6

PATRICK J. WALSH 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 |] s:\PaW\cases-State Habeas\LOPEZ, J 7558\0SC dismiss pet.wpd