Michael Jenkins v. Alex Villanueva

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION [11] 12 MICHAEL JENKINS, ) No. CV 21-7943-VBF (PLA) ) 13 Petitioner, ) ORDER TO SHOW CAUSE RE: DISMISSAL ) OF HABEAS PETITION 14 v. ) ) 15 ALEX VILLANUEVA, ) ) 16 Respondent. ) ) [17] 18 I 19 BACKGROUND 20 Michael Jenkins (“petitioner”) initiated this action on October 4, 2021, by filing a Petition for 21 Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”). 22 The Petition challenges his July 2020 conviction in Los Angeles County Superior Court case 23 number PA09416001 in which petitioner pleaded no contest to willful infliction of corporal injury 24 in violation of California Penal Code § 273.5(f)(1), and received a sentence of five years in state 25 prison. (ECF No. 1 at 2; see also Los Angeles County Superior Court website at 26 http://www.lacourt.org/criminalcasesummary for case no. PA094160-01). The Petition sets forth [28] 1 one ground for relief: petitioner’s due rights have been violated because he has not received any 2 credits under Proposition 57. (ECF No. 1 at 6). [3] 4 II 5 DISCUSSION 6 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to conduct a 7 preliminary review of the Petition. Pursuant to Rule 4, the Court must summarily dismiss a petition 8 “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled 9 to relief in the district court.” Rule 4 of the Rules Governing Section 2254 Cases; see also 10 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Following this review, the Court issues this 11 Order to Show Cause directed to petitioner because the face of the Petition suggests that 12 petitioner’s ground for relief under Proposition 57 is not exhausted in the California Supreme 13 Court. Indeed, it does not appear that petitioner filed either a petition for review from his 14 conviction or a habeas petition in that court. 15 As a matter of comity, a federal court will not entertain a habeas corpus petition unless the 16 petitioner has exhausted the available state judicial remedies on every ground presented in the 17 petition. Rose v. Lundy, 455 U.S. 509, 518-22 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982). The 18 habeas statute explicitly provides that a habeas petition brought by a person in state custody “shall 19 not be granted unless it appears that -- (A) the applicant has exhausted the remedies available 20 in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) 21 circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 22 U.S.C. § 2254 (b)(1). Moreover, if the exhaustion requirement is to be waived, it must be waived 23 expressly by the state, through counsel. See 28 U.S.C. § 2254 (b)(3). 24 Exhaustion requires that a petitioner’s contentions be fairly presented to the state supreme 25 court. O’Sullivan v. Boerckel, 526 U.S. 838, 845-47 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999); James 26 v. Giles, 221 F.3d 1074 , 1077 n.3 (9th Cir. 2000). A claim has not been fairly presented unless 27 the prisoner has described in the state court proceedings both the operative facts and the federal 28 legal theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66 , 115 S.Ct. 1 887 , 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-78 , 92 S.Ct. 509 , 30 L.Ed.2d 2 438 (1971); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). State remedies are not 3 exhausted if an appeal or petition for post-conviction relief is still pending in state court. Sherwood 4 v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (if petitioner has a pending state appeal, he “must 5 await the outcome of his appeal before his state remedies are exhausted”); Schnepp v. Oregon, [6] 333 F.2d 288, 288 (9th Cir. 1964) (per curiam) (state remedies are unexhausted where a petition 7 for post-conviction relief is still pending in state court). 8 Petitioner has the burden of demonstrating that exhaustion was completed. See, e.g., 9 Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). Here, there is no indication that petitioner has 10 presented his claim to the California Supreme Court. Accordingly, it appears that dismissal of the 11 Petition for failure to exhaust is appropriate. [12] 13 III 14 ORDER 15 In light of the foregoing, petitioner is ordered to show cause why the Petition should not be 16 dismissed for failure to exhaust. No later than October 29, 2021, petitioner must submit to the 17 Court a response making clear his arguments, if any, as to why the Petition should not be 18 dismissed. To satisfy the exhaustion requirement, petitioner must submit proof that his ground 19 for relief set forth in the instant Petition, and the federal basis for his claim, has previously been 20 presented to the California Supreme Court, by providing this Court with a complete copy of either 21 the petition for review or state habeas petition raising the claim to the California Supreme Court, 22 along with a copy of the California Supreme Court’s ruling. 23 Alternatively, if petitioner agrees that the Petition should be dismissed without prejudice as 24 unexhausted, he may file a notice of voluntary dismissal pursuant to Federal Rule of Civil 25 Procedure 41(a)(1) (“Rule 41”). Rule 41 allows for the voluntary dismissal of an action by a [28] 1|| petitioner’ without prejudice and without a court order before the opposing party serves either an 2|| answer or a motion for summary judgment. Fed. R. Civ. P. 41(a)(1); Hamilton □□□ 3 Shearson-Lehman Am. Express, Inc., 813 F.2d 1532, 1534 (9th Cir. 1987). Respondent has not 4|| yet appeared in this action. 5 The Court clerk is directed to send petitioner a copy of a blank Central District form titled 6| “Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or (c)” along with this 7| Order to Show Cause. 8 Petitioner is advised that if he fails to respond as ordered by October 29, 2021, the 9] Petition will be summarily dismissed for failure to exhaust and/or for failure to prosecute and follow court orders. 11 GalKx emnat= DATED: October 13, 2021 PAUL L. ABRAMS 13 UNITED STATES MAGISTRATE JUDGE [20] 21 |§$ ——_—_————— 29 ‘Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts provides that “[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.” See also Hilton v. Braunskill, 481 U.S. 770 , 776 & n.5 (1987) (Federal Rules of Civil Procedure may be applied to habeas petitions so long as they are not inconsistent with the Rules Governing 25 Section 2254 Cases). The Rules Governing Section 2254 Cases do not contain a specific provision addressing voluntary dismissals. See Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir. 1993) (applying Rule 41 to a petitioner’s request for voluntary dismissal of his habeas petition); Williams v. Clarke, 82 F.3d 270 , 273 (8th Cir. 1996) (“a Rule 41(a)(1) voluntary dismissal is both 27 || appropriate and consistent with the rules governing habeas cases”); Woods v. Knowles, 2003 WL 21767470 , at *1 (N.D. Cal. July 23, 2003). Thus, Rule 41, which otherwise governs such 28 | dismissals, is applicable to this habeas action.