(HC) Moreno v. Allison ( 2022 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 JESSE MORENO, Case No. 1:22-cv-00851-EPG-HC 9 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED 10 v. FOR FAILURE TO EXHAUST STATE JUDICIAL REMEDIES 11 KATHLEEN ALLISON, 12 Respondent. 13 14 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 15 pursuant to 28 U.S.C. § 2254. 16 I. 17 DISCUSSION 18 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 19 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 20 to file a response, if it “plainly appears from the petition and any attached exhibits that the 21 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 22 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 23 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 24 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 25 on comity to the state court and gives the state court the initial opportunity to correct the state’s 26 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 27 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before 1 | presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 2 | Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 3 If Petitioner has not sought relief in the California Supreme Court for the claims that he 4 | raises in the petition, the Court cannot proceed to the merits of those claims. 28 U.S.C. 5 | § 2254(b)(1). The petition states that Petitioner’s claims regarding ineffective assistance of trial 6 | counsel and the courts violating Petitioner’s constitutional rights were not previously presented 7 | to any other court. (ECF No. 1 at 5).! The Court also notes that Petitioner currently has various 8 | petitions and motions pending in the Fresno County Superior Court. (Id. at 3-4). It is possible, 9 | however, that Petitioner has presented his claims to the California Supreme Court and failed to 10 | indicate this to the Court. Thus, Petitioner must inform the Court whether his claims have been 11 | presented to the California Supreme Court, and if possible, provide the Court with a copy of the 12 | petition filed in the California Supreme Court that includes the claims now presented and a file 13 | stamp showing that the petition was indeed filed in 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: _ July 12, 2022 [Je Fahey — 5 UNITED STATES MAGISTRATE JUDGE 26 27 28 | | page numbers refer to the ECF page numbers stamped at the top of the page.