Opinion
Case No. C02-5673RBL
January 17, 2003.
ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED
This habeas corpus petition has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636 (b) and local Rules MJR 3 and 4. The Court, having reviewed the 28 U.S.C. § 2254 petition filed in this case, does hereby find and ORDER:
(1) The Court will not order service of the petition unless petitioner can show the petitioner has exhausted the claims raised in this petition.
(2) As a threshold issue the Court must determine whether or not petitioner has properly presented his federal habeas claims to the state courts. In order to satisfy the exhaustion requirement, petitioner's claims must have been fairly presented to the state's highest court.Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). A federal habeas petitioner must provide the state courts with a fair opportunity to correct alleged violations of prisoners' federal rights. Duncan v. Henry, ___ U.S. ___, 115 S.Ct. 887, 888 (1995). It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state law claim was made. Id. citing Picard v. Connor, 404 U.S. 270 (1971) and Anderson v. Harless, 459 U.S. 4 (1982). The petition does not indicate that any of the issues raised were ever presented to the states highest court for review.
(3) Accordingly, petitioner is ORDERED TO SHOW CAUSE by February 21, 2003 why the petition should not be dismissed for failure to exhaust. If petitioner does not timely file a response to this order or if any such response does not demonstrate that his claims are eligible for federal habeas review, the petition will be subject to dismissal.
(4) The Clerk is directed to send copies of this Order to petitioner.