Allen Washington v. Board of Prison Term et al
Filing
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ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED by Magistrate Judge Patrick J. Walsh. IT IS THEREFORE ORDERED that, no later than August 23, 2013,Petitioner shall inform the Court in writing why this case should not be dismissed for failure to exhaust. Failure to timely file a response will result in a recommendation that this case be dismissed. The Court will also dismiss the action if Petitioner's mail is returned due to the fact that he is no longer at the address he has provided for correspondence with the Court. (ca)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ALLEN WASHINGTON,
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Petitioner,
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v.
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BOARD OF PRISON TERM, et al.,
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Respondent.
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CASE NO. CV 10-3917-SVW (PJW)
ORDER TO SHOW CAUSE WHY PETITION
SHOULD NOT BE DISMISSED
On May 25, 2010, Petitioner filed a Petition for Writ of Habeas
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Corpus, seeking release from the California Department of Corrections.
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(Petition at 1.)
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20, 2010, for absconding from parole.
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that he is being held unlawfully because the “maximum discharge date”
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for his parole period relating to the underlying felony, corporal
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injury to a spouse, which he pled guilty to in 2002, has been
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exceeded.
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According to Petitioner, he was arrested on April
(Petition at 3.)
He claims
(Petition at 2-4.)
As a matter of comity between state and federal courts, a federal
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court generally will not address the merits of a habeas corpus
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petition unless the petitioner has first exhausted his state remedies,
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i.e., sought state court review of every ground presented in the
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petition by presenting it to the highest state court.
Rose v. Lundy,
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455 U.S. 509, 518-22 (1982).
Indeed, the law governing habeas
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petitions provides that a habeas petition brought by a person in state
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custody cannot be granted “unless it appears that--(A) the applicant
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has exhausted the remedies available in the courts of the State; or
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(B)(i) there is an absence of available State corrective process; or
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(ii) circumstances exist that render such process ineffective to
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protect the rights of the applicant.”
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exhaust state remedies, a petitioner must fairly present his
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contentions to the state courts, and the highest court of the state
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must dispose of them on the merits.
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838, 842, 844-45 (1999).
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exhaust sua sponte.
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28 U.S.C. § 2254(b)(1).
To
Cir. 1992.)
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O’Sullivan v. Boerckel, 526 U.S.
A district court may raise a failure to
Stone v. San Francisco, 968 F.2d 850, 856 (9th
In his Petition, Petitioner does not allege that he has presented
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his claim for relief to the California Supreme Court.
Further, a
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check of the California Appellate Courts’ website shows that
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Petitioner has not filed anything in the California Supreme Court
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since 1991.
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unexhausted and is subject to dismissal on that basis.
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v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).
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present his claims to the state supreme court, either through direct
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appeal or in a petition for habeas corpus, and have that court decide
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them on their merits before he can proceed in this Court.
Thus, it appears that the Petition is completely
See Rasberry
Petitioner must first
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IT IS THEREFORE ORDERED that, no later than August 23, 2013,
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Petitioner shall inform the Court in writing why this case should not
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be dismissed for failure to exhaust.
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response will result in a recommendation that this case be dismissed.
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The Court will also dismiss the action if Petitioner’s mail is
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Failure to timely file a
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returned due to the fact that he is no longer at the address he has
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provided for correspondence with the Court.
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It is so ordered.
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DATED: August 1, 2013.
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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE
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S:\PJW\Cases-State Habeas\WASHINGTON, A 3917\OSC dismiss pet.wpd
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