The opinion
Case 8:22-cv-01640-MEMF-KES Document 10 Filed 09/14/22 Page 1 of 5 Page ID #:1032
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 8:22-cv-01640-MEMF-KES Date: September 14, 2022
Title: XINGFEI LUO v. THE PEOPLE OF CALIFORNIA
PRESENT:
THE HONORABLE KAREN E. SCOTT, U.S. MAGISTRATE JUDGE
Jazmin Dorado Not Present
Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR ATTORNEYS PRESENT FOR
PLAINTIFF: DEFENDANT:
None Present None Present
PROCEEDINGS (IN CHAMBERS): Order to Show Cause Why Petition
Should Not Be Dismissed as Mixed
A. Background
On September 6, 2022, probationer Xingfei Luo (“Petitioner”) constructively filed a
Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254.
(Dkt. 1 [“Petition”].) Petitioner challenges her misdemeanor convictions for vandalism, violating
a protective order, and disorderly conduct. (Id. at 1.) The Petition raises thirty-four claims for
relief based on Petitioner’s own numbering. (Id. at 14-85.)
B. Legal Standard
All claims in a federal habeas petition must be “exhausted” before a federal court may grant
the petition. 28 U.S.C. § 2254(b)(1); Rose v. Lundy, 455 U.S. 509, 522 (1982). To exhaust a
claim, the petitioner must “fairly present” the claim to the state courts, to give the State the
opportunity to pass upon and correct alleged violations of the petitioner’s federal rights. Duncan
v. Henry, 513 U.S. 364, 365 (1995). To be properly exhausted, the claim must be “fairly
presented” to the highest court in a state court system, even if that court’s review is discretionary.
O’Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999); James v. Giles, 221 F.3d 1074, 1077, n.3
(9th Cir. 2000). For a petitioner in California state custody, this generally means that the petitioner
must have presented her claims to the California Supreme Court. Gatlin v. Madding, 189 F.3d
882, 888 (9th Cir. 1999); see also Carey v. Saffold, 536 U.S. 214, 221 (2002) (noting that, although
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 8:22-cv-01640-MEMF-KES Date: September 14, 2022
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“California’s ‘original writ’ system” does not “technically speaking” require a habeas petitioner
to begin with the Superior Court and then proceed to the California Court of Appeal and California
Supreme Court, “California’s habeas rules lead a prisoner ordinarily to file a petition in a lower
court first ... and later seek appellate review in a higher court....”).
For a claim to have been “fairly presented” to the state courts, the claim “must include a
reference to a specific federal constitutional guarantee, as well as a statement of the facts that
entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-63 (1996). The claim
should alert the state court to the alleged federal basis for the claim “by citing in conjunction with
the claim the federal source of law on which she relies or a case deciding such a claim on federal
grounds, or by simply labeling the claim ‘federal.’” Baldwin v. Reese, 541 U.S. 27, 32 (2004).
“[O]rdinarily a state prisoner does not ‘fairly present’ a claim to a state court if that court must
read beyond a petition or a brief (or a similar document) that does not alert it to the present of a
federal claim in order to find material, such as a lower court opinion in the case, that does so.” Id.
A petitioner has the burden of demonstrating that she has exhausted available state
remedies. See, e.g., Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982).
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), all federal
habeas petitions are subject to a one-year statute of limitations, and claims not exhausted and
presented to the federal court within the one-year period are forfeited. 28 U.S.C. § 2244(d). Under
Rhines v. Weber, 544 U.S. 269 (2005), a district court has discretion to stay a petition to allow a
petitioner to exhaust her claims in state court without running afoul of AEDPA’s one-year statute
of limitations period. Id. at 273-75. A district court may stay a petition if: (1) the petitioner has
good cause for her failure to exhaust her claims; (2) the unexhausted claims are potentially
meritorious; and (3) there is no indication that the petitioner intentionally engaged in dilatory
tactics. Id. at 278.
Alternatively, the Court may grant a stay under Kelly v. Small, 315 F.3d 1143 (9th Cir.
2003), which does not have the Rhines “good cause” requirement. See King v. Ryan, 564 F.3d
1133, 1135 (9th Cir. 2009). A Kelly stay and abeyance requires compliance with the following
three-step procedure: (1) petitioner files an amended petition deleting her unexhausted claims;
(2) the district court “stays and holds in abeyance the amended, fully exhausted petition, allowing
petitioner the opportunity to proceed to state court to exhaust the deleted claims”; and (3) petitioner
must subsequently seek to amend the federal habeas petition to reattach “the newly-exhausted
claims to the original petition.” Id. at 1135. Under Kelly, however, the petitioner is only allowed
to amend newly-exhausted claims back into her federal petition if the claims are timely under the
AEDPA or “relate back” to the exhausted claims in the pending petition. Id. at 1140-41; see also
Mayle v. Felix, 545 U.S. 644, 662-64 (2005); Stein v. Director of Corrections, No. 05-1592, 2009
U.S. Dist. LEXIS 114016, 2009 WL 4755727 (E.D. Cal. Dec. 8, 2009).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 8:22-cv-01640-MEMF-KES Date: September 14, 2022
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C. Discussion
The following claims raised in the present Petition appear to be unexhausted because
Petitioner did not raise them in her habeas petition to the California Supreme Court (Dkt. 6. at
24-117) and this Court has found no record of a direct appeal to the California Supreme Court:
Claim Seven: “Perjured Testimony/False evidence – report to police the following
week after Sep 7 2018” (Dkt. 2 at 30);
Claim Eight: “Perjured Testimony/False evidence – It was dark on Sep 18, 2018”
(id.);
Claim Nine: “Violation of Fifth Amendment – Unlawfully Introducing
Petitioner’s Compelled Testimony, While At the Same Time Misrepresenting
Petitioner’s Prior Testimony” (id. at 31);
Claim Nineteen: “Unreasonable Determination of The Facts In Light of The
Evidence Presented in The State Court Proceeding Under 28 U.S.C. § 2254(d)(2)”
(id. at 49);
Claim Twenty-Five: “Violation of Confrontation Clause of the Sixth Amendment
and Due Process – Admission of inadmissible hearsay” (id. at 55);
Claim Twenty-Six: “Violation of Sixth and Fourteenth Amendments – Improper
permitting amendment” (id.);
Claim Twenty-Eight: “Violation of Sixth and Fourteenth Amendments – the trial
court erred in denying the Petitioner’s motion to dismiss” (id. at 74);
Claim Twenty-Nine: “Violation of Sixth and Fourteenth Amendments – the trial
court erred in denying Petitioner’s Marsden motion” (id.);
Claim Thirty-Three: “Actual Innocence” (id. at 85); and
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 8:22-cv-01640-MEMF-KES Date: September 14, 2022
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Claim Thirty-Four: “Section 2254(d) Does Not Bar Relief.” (Id.)1
D. Conclusion
IT IS HEREBY ORDERED that, on or before October 14, 2022, Petitioner is ordered to
show cause why the Petition should not be dismissed as mixed. In response to this Order to Show
Cause, Petitioner should do one of the following:
(1) State that Petitioner would like to proceed only with the exhausted claims;
(2) Explain when/how Petitioner believes the above-noted claims were exhausted in state
court; or
(3) File a motion to stay this action, to permit her to return to state court to exhaust the
above-noted claims. As discussed above, a stay may be available under Rhines v. Weber, 544
U.S. 269 (2005) if Petitioner can show “good cause” for her failure to exhaust her claims earlier,
or under Kelly v. Small, 315 F.3d 1143 (9th Cir. 2003).
The Court notes that Petitioner does not have a lawyer. Parties in court without a lawyer
are called “pro se litigants.” Public Counsel runs free Federal Pro Se Clinics at three locations,
which can be found on the next page.
Initials of Deputy Clerk JD
1 The fact that a claim is not on this list should not be interpreted as a judicial
determination that it is exhausted. At this point, the Court has not considered the merits of any
of Petitioner’s claims.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. 8:22-cv-01640-MEMF-KES Date: September 14, 2022
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