(HC) Terrance Hullaby v. Feiffer ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TERRANCE HULLABY, ) Case No.: 1:21-cv-00569-JLT (HC) ) 12 Petitioner, ) ORDER DISMISSING PETITION WITH LEAVE ) TO FILE A FIRST AMENDED PETITION 13 v. ) ) [THIRTY-DAY DEADLINE] 14 CHRISTIAN FEIFFER, Warden, ) 15 Respondent. ) ) 16 ) 17 Petitioner filed a Petition for Writ of Habeas Corpus on April 5, 2021. (Doc. 1.) A 18 preliminary screening of the petition reveals that the petition fails to demonstrate exhaustion of state 19 remedies. Therefore, the Court will DISMISS the petition with leave to file an amended petition. 20 I. DISCUSSION 21 A. Preliminary Review of Petition 22 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary 23 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 24 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 25 the district court. . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory 26 Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, 27 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 28 answer to the petition has been filed. 1 B. Exhaustion 2 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 3 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 4 exhaustion doctrine is based on comity to the state court and gives the state court the initial 5 opportunity to correct the state’s alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 6 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 7 A petitioner can satisfy the exhaustion requirement by providing the highest state court with a 8 full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. 9 Henry, 513 U.S. 364, 365 (1995). A federal court will find that the highest state court was given a full 10 and fair opportunity to hear a claim if the petitioner has presented the highest state court with the 11 claim’s factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 12 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 13 Petitioner has indicated that he has not exhausted his state remedies by first seeking relief in 14 the state courts. (Doc. 1 at 9.) If he has not, the Court must dismiss the petition. Raspberry v. Garcia, 15 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). The Court 16 cannot consider a petition that is entirely unexhausted. Rose, 455 U.S. at 521-22. If in fact Petitioner 17 has fully exhausted his claims, he must so indicate in his amended petition. 18 Petitioner will be granted an opportunity to file a First Amended Petition curing the foregoing 19 deficiency. Petitioner is advised that he should entitle his pleading, “First Amended Petition,” and he 20 should reference the instant case number. 21 II. ORDER 22 Accordingly, the Court ORDERS: 23 1) The Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE for 24 failure to exhaust state remedies; and 25 2) Petitioner is GRANTED thirty days from the date of service of this order to file a First 26 Amended Petition. 27 /// 28 /// 1 Petitioner is forewarned that his failure to comply with this Order may result in an Order of 2 Dismissal or a Recommendation that the petition be dismissed pursuant to Local Rule 110. 3 4 IT IS SO ORDERED. 5 Dated: April 8, 2021 _ /s/ Jennifer L. Thurston 6 CHIEF UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28