(HC) Andrus v. Sullivan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON A. ANDRUS, Case No. 1:19-cv-01540-JDP 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR 13 v. FAILURE TO EXHAUST 14 J. SULLIVAN, OBJECTIONS DUE IN THIRTY DAYS 15 Respondent. ECF No. 1 16 17 18 Petitioner Jason A. Andrus, a state prisoner without counsel, petitioned for a writ of 19 habeas corpus under 28 U.S.C. § 2254. ECF No. 1. Petitioner claims that the prison’s late 20 service of a rules violation report caused petitioner to lose 121 days of credit. Id. at 7. Petitioner 21 has not stated that he sought any state-level judicial review of his claims before filing the instant 22 petition, and he has provided no proof of any such proceedings. We will order petitioner to show 23 cause why his petition should not be dismissed for failure to exhaust his claims. 24 Discussion 25 This matter is before the court for preliminary review under Rule 4 of the Rules 26 Governing Section 2254 Cases. Under Rule 4, the judge assigned to a habeas proceeding must 27 examine the habeas petition and order a response thereto unless it “plainly appears” that the 28 1 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 2 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 3 Absent rare circumstances, a state prisoner shall not be granted federal habeas relief 4 unless “the applicant has exhausted the remedies available in the courts of the [s]tate.” 28 U.S.C. 5 § 2254(b)(1)(A). A petitioner can satisfy the exhaustion requirement by providing the highest 6 state court with a full and fair opportunity to consider each claim before presenting it to the 7 federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 8 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). The exhaustion doctrine is based on 9 comity; it gives the state court the initial opportunity to correct the state’s alleged constitutional 10 deprivations. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 11 518 (1982). If petitioner is currently pursuing relief in state court—and we have no indication 12 that he is—the existence of such a parallel proceeding would warrant the court’s abstinence from 13 considering this case to allow state courts the first opportunity to address petitioner’s claims. See 14 Younger v. Harris, 401 U.S. 37 (1971); Colorado River Water Conservation Dist. v. United 15 States, 424 U.S. 800, 817 (1976). 16 Here, it appears that petitioner has not sought any remedy in state court. See generally 17 ECF No. 1. If so, this amounts to a failure to exhaust his claims. See Murray v. Schriro, 882 18 F.3d 778, 807 (9th Cir. 2018). Accordingly, petitioner must show cause why his petition should 19 not be dismissed for failure to exhaust. If petitioner has not exhausted his claims at the state 20 level, he may move to withdraw his entire petition and return to federal court when he has 21 exhausted his state court remedies.1 Alternatively, petitioner may move to stay and hold in 22 abeyance the petition while he exhausts his claims in state court. See Rhines v. Weber, 544 U.S. 23 269, 277 (2005); Kelly v. Small, 315 F.3d 1063, 1070–71 (9th Cir. 2002).2 Finally, if petitioner 24 1 Although the limitations period tolls while a properly filed request for collateral review is 25 pending in state court, 28 U.S.C. § 2244(d)(2), it does not toll for the time a federal habeas petition is pending in federal court. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 26 2 Although two procedures, Rhines and Kelly, are available to stay a petition and hold it under 27 abeyance, petitioner’s circumstances likely dictate that a Rhines stay is the appropriate procedure here. Under Rhines, a “stay and abeyance” is available only when: (1) there is “good cause” for 28 the failure to exhaust; (2) the unexhausted claims are not “plainly meritless”; and (3) the 1 | has exhausted his claims, he may file a first amended complaint which demonstrates this 2 | exhaustion. 3 | Order 4 1. Within thirty days from the date of service of this order, petitioner must respond to 5 our order to show cause. 6 2. The clerk’s office is directed to send petitioner a Section 2254 petition form. 7 3. Petitioner’s failure to comply with this order may result in the dismissal of this 8 action.? 9 10 IT IS SO ORDERED. 11 Dated: _ March 18, 2020 12 UNIT#D STATES MAGISTRATE JUDGE 13 14 | No. 206. 15 16 17 18 19 20 21 22 |—§_ a petitioner did not intentionally engage in dilatory litigation tactics. 544 U.S. at 277-78. If 24 | petitioner wishes to stay his petition under Rhines, he must demonstrate that he meets the three requirements of Rhines in his response to this order to show cause. On the other hand, a Kelly 25 stay is available where a petition contains both exhausted and unexhausted claims. Because all 26 | Claims in the petition appear to be unexhausted, a Kelly stay is not appropriate here. 3 Petitioner is forewarned that failure to follow this order may result in a recommendation for 27 | 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). 28