1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONOVAN CHAD BREVIK, No. 1:23-cv-01570-SKO (HC) 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED 13 v. FOR FAILURE TO EXHAUST STATE REMEDIES 14 CHARLES SCHUYLER, [TWENTY-ONE DAY DEADLINE] 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for 18 writ of habeas corpus pursuant to

. Petitioner filed the instant habeas petition on 19 July 31, 2023, challenging his 2017 conviction in Calaveras County Superior Court. The petition 20 appears to contain unexhausted claims; therefore, Petitioner will be ordered to show cause why it 21 should not be dismissed without prejudice. 22 DISCUSSION 23 A. Preliminary Review of Petition 24 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 25 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 26 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 27 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 28 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 1 dismiss, or after an answer to the petition has been filed. Herbst v. Cook,

(9th Cir. 2 2001). 3 B. Exhaustion 4 A petitioner who is in state custody and wishes to collaterally challenge his conviction by 5 a petition for writ of habeas corpus must exhaust state judicial remedies.

(b)(1). 6 The exhaustion doctrine is based on comity to the state court and gives the state court the initial 7 opportunity to correct the state's alleged constitutional deprivations. Coleman v.

, 731 (1991); Rose v. Lundy,

(1982). 9 A petitioner can satisfy the exhaustion requirement by providing the highest state court 10 with a full and fair opportunity to consider each claim before presenting it to the federal court. 11 Duncan v. Henry,

(1995). A federal court will find that the highest state court 12 was given a full and fair opportunity to hear a claim if the petitioner has presented the highest 13 state court with the claim's factual and legal basis. Duncan,

(legal basis); Kenney 14 v. Tamayo-Reyes,

,

(1992) (factual basis). 15 Additionally, the petitioner must have specifically told the state court that he was raising a 16 federal constitutional claim. Duncan,

. In Duncan, the United States Supreme 17 Court reiterated the rule as follows:

18 In Picard v. Connor,

, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners “fairly presen[t]” federal claims to the state 19 courts in order to give the State the “opportunity to pass upon and correct alleged violations of the prisoners' federal rights” (some internal quotation marks omitted). 20 If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners 21 are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due 22 process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 23 24 Duncan,

. The Ninth Circuit examined the rule further, stating:

25 Our rule is that a state prisoner has not “fairly presented” (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those 26 claims were based on federal law. See Shumway v. Payne,

(9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held 27 that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is “self- 28 evident," Gatlin v. Madding,

(9th Cir. 1999) (citing Anderson v. 1 Harless,

, 7 . . . (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on 2 federal grounds. Hiivala v. Wood,

(9th Cir. 1999); Johnson v. Zenon,

(9th Cir. 1996); . . . . 3 In Johnson, we explained that the petitioner must alert the state court to the fact 4 that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of 5 federal law is. 6 Lyons v. Crawford,

(9th Cir. 2000) (italics added), as amended by Lyons 7 v. Crawford,

(9th Cir. 2001). 8 Petitioner sets forth ten claims for relief. He indicates in some claims that he has 9 exhausted his state remedies. However, in other claims, he states that his appellate attorney was 10 unable to raise certain issues due to page limitations. It is unclear whether all his claims have 11 been raised to the state courts and fully exhausted. The Court cannot review the merits of 12 unexhausted claims, except to deny them.

(b)(2). Therefore, Petitioner will be 13 ordered to show cause why the petition should not be dismissed without prejudice. Raspberry v. 14 Garcia,

(9th Cir. 2006); Jiminez v. Rice,

(9th Cir. 2001). 15 If Petitioner has not exhausted all his claims, he may file a notice to withdraw his petition so that 16 he may return to the state courts to raise his unexhausted claims. 17 ORDER 18 Accordingly, IT IS HEREBY ORDERED that Petitioner is directed to SHOW CAUSE 19 within twenty-one (21) days why the petition should not be dismissed for failure to exhaust state 20 remedies. 21 IT IS SO ORDERED. 22 23 Dated: August 7, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 24

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