(HC)Anaya v. Cates

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JULIO A. ANAYA, Case No. 1:21-cv-00737-SAB-HC 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED 13 v. FOR FAILURE TO EXHAUST STATE REMEDIES B. CATES, 15 Respondent.

17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

19 I.

20 DISCUSSION 21 On May 7, 2021, the Court received the instant petition for writ of habeas corpus. (ECF No. 1). Although it is unclear, Petitioner, who is currently housed at the California Correctional Institution (“CCI”) in Tehachapi, appears to challenge his 2020 Ventura County Superior Court convictions and sentence on various due process grounds in addition to challenging CCI’s disapproval of Petitioner’s requests for early release and sentence recall. (ECF No. 1 at 3–4).1 26 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a habeas petition and allows a district court to dismiss a petition before the respondent is ordered to file a response, if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.”

3 Here, it appears that Petitioner may have failed to exhaust the claims that he raises in the instant petition. A petitioner in state custody who is proceeding with a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state’s alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971).

12 If Petitioner has not sought relief in the California Supreme Court, the Court cannot proceed to the merits of his claims. 28 U.S.C. § 2254(b)(1). Although the petition states that Petitioner did not file a direct appeal, did not seek the highest level of administrative review available, and did not file any other petitions (ECF No. 1 at 5), it is possible that Petitioner presented his claims to the California Supreme Court and failed to indicate this to the Court.

17 Thus, Petitioner must inform the Court whether each of his claims has been presented to the California Supreme Court, and if possible, provide the Court with a copy of the petition filed in the California Supreme Court that includes the claims now presented and a file stamp showing that the petition was indeed filed in the California Supreme Court.

21 II.

22 ORDER 23 Accordingly, Petitioner is ORDERED to SHOW CAUSE within THIRTY (30) days from the date of service of this order why the petition should not be dismissed for failure to exhaust state remedies.

26 /// /// 1 Petitioner is forewarned that failure to follow this order will result in a recommendation | for dismissal of the petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s | failure to prosecute or to comply with a court order may result in a dismissal of the action).

5 IT IS SO ORDERED. FA. ee | Dated: _ May 14, 2021 " UNITED STATES MAGISTRATE JUDGE