(HC)Smith v. Clark ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAWRENCE CHRISTOPHER SMITH, Case No. 1:21-cv-01554-EPG-HC 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED 13 v. FOR FAILURE TO EXHAUST STATE COURT REMEDIES 14 KEN CLARK, 15 Respondent. 16 17 Petitioner Lawrence Christopher Smith is a state prisoner proceeding pro se with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 I. 20 DISCUSSION 21 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 22 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 23 to file a response, if it “plainly appears from the petition and any attached exhibits that the 24 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 25 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 26 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 27 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 1 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 2 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 3 providing the highest state court with a full and fair opportunity to consider each claim before 4 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 5 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 6 If Petitioner has not sought relief in the California Supreme Court for the claims that he 7 raises in the petition, the Court cannot proceed to the merits of those claims. 28 U.S.C. 8 § 2254(b)(1). It appears that Petitioner has presented his clams only to the California Court of 9 Appeal and has not presented any claims to the California Supreme Court. (ECF No. 1 at 3).1 10 Petitioner states that the “[i]ssues presented were federalized [and] further review before the state 11 courts would be a futile act.” (Id.). 12 A petitioner is excused from the exhaustion requirement if “(i) there is an absence of 13 available State corrective process; or (ii) circumstances exist that render such process ineffective 14 to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). “An exception is made only if 15 there is no opportunity to obtain redress in state court or if the corrective process is so clearly 16 deficient as to render futile any effort to obtain relief.” Duckworth v. Serrano, 454 U.S. 1, 3 17 (1981). See Hendricks v. Zenon, 993 F.2d 664, 672 (9th Cir. 1993) (recognizing that exhaustion 18 requirement may be excused “in rare cases where exceptional circumstances of peculiar urgency 19 are shown to exist” (quoting Granberry v. Greer, 481 U.S. 129, 134 (1987))). However, a 20 petitioner “may not bypass the state courts simply because he thinks they will be unsympathetic 21 to the claim.” Engle v. Isaac, 456 U.S. 107, 130 (1982).2 22 It is possible, however, that Petitioner has presented his claims to the California Supreme 23 Court and failed to indicate this to the Court. Thus, Petitioner must inform the Court whether his 24 25 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 2 Previously the Ninth Circuit has found that a court may “excuse[]a petitioner’s failure to exhaust state remedies ‘if the highest state court has recently addressed the issue raised in the petition and resolved it adversely to the 26 petitioner, in the absence of intervening United States Supreme Court decisions on point or any other indication that the state court intends to depart from its prior decisions.’” Alfaro v. Johnson, 862 F.3d 1176, 1180 (9th Cir. 2017) 27 (quoting Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir. 1981)). However, post-Engle, it is unclear whether this futility exception to the exhaustion requirement has continuing viability. Alfaro, 862 F.3d at 1181 (questioning but 1 | claims have been presented to the California Supreme Court, and if possible, provide the Court 2 | with a copy of the petition filed in the California Supreme Court that includes the claims now 3 | presented and a file stamp showing that the petition was indeed filed in the California Supreme 4 | Court. 5 I. 6 ORDER 7 Accordingly, IT IS HEREBY ORDERED that Petitioner SHALL SHOW CAUSE why 8 | the petition should not be dismissed for failure to exhaust state court remedies within THIRTY 9 | (30) days from the date of service of this order. 10 Petitioner is forewarned that failure to follow this order may result in dismissal of the 11 | petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s failure to prosecute or 12 | to comply with a court order may result in a dismissal of the action). 13 4 IT IS SO ORDERED. 15] Dated: _ November 10, 2021 [sf ey — 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28