(HC) Aviles v. Sullivan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AURELIO SANCHEZ AVILES, Case No. 1:19-cv-01389-JDP 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR 13 v. FAILURE TO EXHAUST CLAIMS 14 J. SULLIVAN, ECF No. 1 15 Respondent. 16 17 Petitioner Aurelio Sanchez Aviles, a state prisoner without counsel, seeks a writ of habeas 18 corpus under 28 U.S.C. § 2254. ECF No. 1. Petitioner claims that his due process rights are 19 currently being violated by officials at his prison. See ECF No. 1 at 6. Petitioner states that he 20 was granted elderly parole on April 10, 2019 and that his release date was set for July 19, 2010. 21 Id. However, he remains incarcerated. Id.1 22 The matter is before the court for preliminary review under Rule 4 of the Rules Governing 23 Section 2254 Cases. Under Rule 4, the judge assigned to a habeas corpus proceeding must 24 examine the petition and order a response thereto unless it “plainly appears” that the petitioner is 25 1 We have reviewed the California Department of Corrections and Rehabilitation’s inmate locator 26 listing for the petitioner and take judicial notice of it per Rule 201 of the Federal Rules of 27 Evidence. See California Department of Corrections and Rehabilitation Inmate Locator, https://inmatelocator.cdcr.ca.gov/ (search “Search for Inmate” for “Aurelio Aviles”). The 28 petitioner’s parole eligibility date is listed as July 2021. 1 not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. 2 Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). Rule 4 was “designed to give courts an active 3 role in summarily disposing of facially defective habeas petitions.” Ross v. Williams, 896 F.3d 4 958, 968 (9th Cir. 2018) (citation omitted). The court may dismiss claims at screening for “easily 5 identifiable” procedural defects. See id. We will order petitioner to show cause why his petition 6 should not be dismissed for failure to exhaust his claims. 7 Discussion 8 Petitioner must exhaust his claims before seeking federal habeas review. See 28 U.S.C. 9 § 2254(b)(1)(A); Murray v. Schriro, 882 F.3d 778, 807 (9th Cir. 2018). The exhaustion doctrine 10 is based on comity; it gives the state courts the initial opportunity to correct the state’s alleged 11 constitutional deprivations. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 12 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by providing the 13 highest state court with a full and fair opportunity to consider each claim before presenting it to a 14 federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 15 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 16 Here, petitioner states that he has sought neither prison administrative nor state court 17 review of the prison’s failure to release him. See id. at 7. He has provided no evidence of having 18 filed any state petitions or appeals. If petitioner is currently pursuing relief in state court—and we 19 have no indication that he is—the existence of such a parallel proceeding would warrant the 20 court’s abstinence from considering this case to allow state courts the first opportunity to address 21 his claims. See Younger v. Harris, 401 U.S. 37 (1971); Colorado River Water Conservation Dist. 22 v. United States, 424 U.S. 800, 817 (1976). If petitioner has not exhausted his claims, we cannot 23 exercise jurisdiction over the case. Therefore, petitioner is ordered to show cause why his 24 petition should not be dismissed for failure to exhaust his claims. 25 26 27 28 1 | Order 2 Accordingly, 3 1. Within thirty days from the date of service of this order, petitioner must show 4 cause as to why his petition should not be dismissed for failure to exhaust his 5 claims. 6 2. Petitioner’s failure to comply with this order may result in the dismissal of this 7 action.” 8 9 IT IS SO ORDERED. 10 Dated: _ February 10, 2020 11 UNIT#D STATES MAGISTRATE JUDGE 12 13 14 | No. 206. 15 16 17 18 19 20 21 22 23 24 25 26 > 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) (stating that a 27 || petitioner’s failure to prosecute or to comply with a court order may result in a dismissal of an action). 28