(HC) Bretz v. United States District Court ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DREW PATTERSON BRETZ, Case No. 1:20-cv-00663-JDP 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR 13 v. FAILURE TO EXHAUST CLAIM 14 UNITED STATES DISTRICT COURT, RESPONSE DUE IN THIRTY DAYS 15 Respondent. ECF No. 1 16 17 Petitioner Drew Patterson Bretz, a state pre-trial detainee without counsel, seeks a writ of 18 habeas corpus under 28 U.S.C. § 2241.1 ECF No. 1. This matter is before us for preliminary 19 review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, a district court 20 must dismiss a habeas petition if it “plainly appears” that the petitioner is not entitled to relief. 21 See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 22 1127 (9th Cir. 1998). Courts have “an active role in summarily disposing of facially defective 23 habeas petitions” under Rule 4. Ross v. Williams, 896 F.3d 958, 968 (9th Cir. 2018) (citation 24 omitted). Because it appears that petitioner has failed to exhaust his claim at the state level, we 25 will order him to show cause why his petition should not be dismissed for failure to exhaust. 26 1 Although petitioner has filed his petition on a California state habeas petition form, we will 27 consider his petition under 28 U.S.C. § 2241, which is the proper vehicle for state pre-trial detainees seeking federal habeas relief. See McNeely v. Blanas, 336 F.3d 822, 824 n.1 (9th Cir. 28 2003). 1 Discussion 2 Petitioners in state custody challenging either the fact or length of their confinement in 3 federal court must first exhaust state judicial remedies by presenting the highest state court with a 4 fair opportunity to rule on the merits of their claims. See Rose v. Lundy, 455 U.S. 509, 510 5 (1982). The exhaustion doctrine is based on comity to the state court and gives the state court the 6 initial opportunity to correct the state’s alleged constitutional deprivations. See Coleman v. 7 Thompson, 501 U.S. 722, 731 (1991). Under § 2241(c)(3), applicable to pretrial detainees, there 8 is no exhaustion requirement mandated by statute. However, exhaustion is necessary for pre-trial 9 detainees as a matter of comity pursuant to § 2241, unless special circumstances warranting 10 federal intervention prior to a state criminal trial can be found. See Carden v. Montana, 626 F.2d 11 82, 83-84 (9th Cir. 1980) (explaining that “special circumstances” which relieve a petitioner from 12 the exhaustion requirement are instances of proven harassment, bad-faith prosecution, or other 13 extraordinary circumstances where irreparable injury is imminent). 14 Here, petitioner states that he has been in pre-trial custody since November 2017 without 15 being charged or indicted with any crime. ECF No. 1 at 3. He alleges that he has not been given 16 a detention hearing and seeks an order from this court requiring the state court to hold such a 17 hearing. Id. However, it appears that petitioner has not sought any state judicial review of his 18 claim.2 See id. at 5-6. Moreover, petitioner does not allege any special circumstances that would 19 relieve him of his obligation to exhaust his claim. Therefore, we will order petitioner to show 20 cause why his petition should not be dismissed for failure to exhaust his claim. 21 Order 22 Within thirty days of the service of this order, petitioner must show cause why his petition 23 should not be dismissed for failure to exhaust his claim. 24 25 26 27 28 2 Petitioner states “N/A” for all sections related to exhaustion in his petition. wOoe VV SYR MMU PR a ee AY VM VI 5 IT IS SO ORDERED. ° y 14, —N prssann — Dated: May 14, 2020 4 UNI STATES MAGISTRATE JUDGE 5 6 | No. 206. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28