(HC) Upshaw v. CSP Los Angeles

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JOHN WILLIAM UPSHAW, Case No. 1:22-cv-00898-SAB-HC 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED 13 v. FOR FAILURE TO EXHAUST STATE REMEDIES CSP LOS ANGELES, 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 July 21, 2022, the Court received the instant petition for writ of habeas corpus wherein Petitioner challenges his 2018 Tulare County Superior Court convictions for residential burglary, residential robbery, attempted carjacking, and unlawful taking of vehicle without owner’s consent. (ECF No. 1 at 2.)1 25 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.” Rule 4, Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254.

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). The petition states that the Tulare County Superior Court denied Petitioner’s state habeas petition on March 30, 2022, and review in the California Supreme Court is “pending.” (ECF No. 1 at 6.) However, the petition further states, “Since receiving the first denial from trial judge, I was able to add what the judge said was lacking from the first habeas corpus,” which indicates to this Court that Petitioner may be pursuing remedies in the state superior court rather than the California Supreme Court. 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.

23 II.

24 ORDER 25 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.

1 Petitioner is forewarned that failure to follow this order may 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: _ July 22, 2022 , UNITED STATES MAGISTRATE JUDGE