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
How later courts described this case
- 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
- if petitioner has a pending state appeal, he “must 5 await the outcome of his appeal before his state remedies are exhausted”
- applying Rule 41 to a petitioner’s request for voluntary dismissal of his habeas petition
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
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
27
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
26
27
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
14
15
16
17
18
19
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.