(HC) Ponce v. Covello ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TOMMY PONCE, SR., Case No. 1:22-cv-00978-DAD-SAB-HC 12 Petitioner, ORDER TO SHOW CAUSE WHY 13 v. PETITION SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST STATE 14 PATRICK COVELLO, COURT REMEDIES 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 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 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 25 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 26 on comity to the state court and gives the state court the initial opportunity to correct the state’s 27 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 1 | providing the highest state court with a full and fair opportunity to consider each claim before 2 | presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 3 | Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 4 If Petitioner has not sought relief in the California Supreme Court, the Court cannot 5 | proceed to the merits of his claims. 28 U.S.C. § 2254(b)(1). Although Petitioner acknowledges 6 | that the claims that he raises in the instant petition currently have not been raised on direct appeal 7 | or in any post-conviction proceedings, (ECF No. 1 at 6-12),' it is possible that Petitioner 8 | presented his claims to the California Supreme Court and failed to indicate this to the Court. 9 | Thus, Petitioner must inform the Court whether each of his claims has been presented to the 10 | California Supreme Court, and if possible, provide the Court with a copy of the petition filed in 11 | the California Supreme Court that includes the claims now presented and a file stamp showing 12 | that the petition was indeed filed in the California Supreme Court. 13 Accordingly, Petitioner is hereby ORDERED to SHOW CAUSE within THIRTY (30) 14 | days from the date of service of this order why the petition should not be dismissed for failure to 15 | exhaust state remedies. 16 Petitioner is forewarned that failure to follow this order may result in a recommendation 17 | for dismissal of the petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s 18 | failure to prosecute or to comply with a court order may result in a dismissal of the action). 19 IT IS SO ORDERED. OF. nf ee 21 | Dated: _August 9, 2022 _ ef UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 | | page numbers refer to the ECF page numbers stamped at the top of the page.