(HC) Quair v. Darby ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DAVID SABINO QUAIR III, Case No. 1:22-cv-01142-JLT-EPG-HC 10 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED 11 v. FOR FAILURE TO EXHAUST STATE JUDICIAL REMEDIES 12 MATT DARBY, 13 Respondent. 14 15 Petitioner David Sabino Quair III is a state prisoner proceeding pro se with a petition for 16 writ of habeas corpus pursuant to 28 U.S.C. § 2254. 17 I. 18 DISCUSSION 19 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 20 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 21 to file a response, if it “plainly appears from the petition and any attached exhibits that the 22 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 23 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 24 Here, it appears that Petitioner may have failed to exhaust the claims that he raises in the 25 instant petition. A petitioner in state custody who is proceeding with a petition for writ of habeas 26 corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is 27 based on comity to the state court and gives the state court the initial opportunity to correct the state’s alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); 1 | Rose v. Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 2 | providing the highest state court with a full and fair opportunity to consider each claim before 3 | presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 4 | Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 5 If Petitioner has not sought relief in the California Supreme Court for the claims that he 6 | raises in the petition, the Court cannot proceed to the merits of those claims. 28 U.S.C. 7 | § 2254(b)(1). It does not appear that any of Petitioner’s claims have been presented to the 8 | California Supreme Court. It is possible, however, that Petitioner has presented his claims to the 9 | California Supreme Court and failed to indicate this to the Court. Thus, Petitioner must inform 10 | the Court whether his claims have been presented to the California Supreme Court, and if 11 | possible, provide the Court with a copy of the petition filed in the California Supreme Court that 12 | includes the claims now presented and a file stamp showing that the petition was indeed filed in 13 | the California Supreme Court. 14 II. 15 ORDER 16 Accordingly, IT IS HEREBY ORDERED that Petitioner SHALL SHOW CAUSE why 17 | the petition should not be dismissed for failure to exhaust state court remedies within THIRTY 18 | (30) days from the date of service of this order. 19 Petitioner is forewarned that failure to follow this order may result in dismissal of the 20 | petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s failure to prosecute or 21 | to comply with a court order may result in a dismissal of the action). 22 73 IT IS SO ORDERED. 24] Dated: _ September 9, 2022 [Je Fahey — 5 UNITED STATES MAGISTRATE JUDGE 26 27 28