Opinion

Michael Jenkins v. Alex Villanueva

Court
District Court, C.D. California
Filed
Oct 13, 2021
Cited by
0 cases
Authority
More cited than 18.0%

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

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 WESTERN DIVISION

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12 MICHAEL JENKINS, ) No. CV 21-7943-VBF (PLA)

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13 Petitioner, ) ORDER TO SHOW CAUSE RE: DISMISSAL

) OF HABEAS PETITION

14 v. )

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15 ALEX VILLANUEVA, )

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16 Respondent. )

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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

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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).

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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.

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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

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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

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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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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