Opinion
1:23-cv-01025-SAB-HC
08-04-2023
JAMAL EVANS, Petitioner, v. S. RODRIGUEZ, Respondent.
ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST STATE REMEDIES ORDER DIRECTING PETITIONER TO FILE MISSING ATTACHMENT
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On July 10, 2023, the Court received the instant petition for writ of habeas corpus wherein Petitioner appears to challenge a prison disciplinary proceeding. (ECF No. 1.) Rule 4 of the Rules Governing Section 2254 Cases (“Habeas Rules”) requires preliminary review of a habeas petition and allows a district court to dismiss a petition before the respondent is ordered to file a response, if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254.
Here, it appears that Petitioner may have failed to exhaust the claims that he raises in the instant petition. A petitioner in state custody who is proceeding with a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is 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); Rose v. 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 presenting it to the federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971).
If Petitioner has not sought relief in the California Supreme Court, the Court cannot proceed to the merits of his claims. 28 U.S.C. § 2254(b)(1). Thus, Petitioner must inform the Court whether each of his claims has been presented to the California Supreme Court, and if possible, provide the Court with a copy of the petition filed in the California Supreme Court that includes the claims now presented and a file stamp showing that the petition was indeed filed in the California Supreme Court.
Additionally, the petition directs the Court to refer to an attachment that consists of ten pages. (ECF No. 1 at 3, 4.) However, the Court is not in receipt of any such attachment.
Page numbers refer to the ECF page numbers stamped at the top of the page.
Accordingly, the Court HEREBY ORDERS that:
1. Within THIRTY (30) days from the date of service of this order, Petitioner SHALL SHOW CAUSE why the petition should not be dismissed for failure to exhaust state remedies; and
2. Within THIRTY (30) days from the date of service of this order, Petitioner is DIRECTED to file the missing attachment to his petition.
Petitioner is forewarned that failure to follow this order may result in a recommendation for dismissal of the petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner's failure to prosecute or to comply with a court order may result in a dismissal of the action).
IT IS SO ORDERED.