Eric A. O'Dell v. Janice Galli McLeod
Filing
10
ORDER TO SHOW CAUSE by Magistrate Judge Alicia G. Rosenberg. Response to Order to Show Cause due by 10/28/2011. On August 10, 2011, Petitioner filed a Petition for Writ of Habeas Corpus. For the reasons discussed below, it appears that Petitioner ha s failed to exhaust his state remedies. The court, therefore, orders Petitioner to show cause, on or before October 28, 2011, why this court should not recommend dismissal without prejudice based on failure to exhaust state remedies. (See Order for details.) (mp)
<![CDATA[
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
ERIC ANDREW O’DELL,
12
Petitioner,
13
14
v.
JANICE GALLI McLEOD, et al.,
15
Respondents.
16
17
)
)
)
)
)
)
)
)
)
)
)
)
NO. CV 11-7647-JVS (AGR)
ORDER TO SHOW CAUSE
18
On August 10, 2011, Petitioner filed a Petition for Writ of Habeas Corpus.
19
20
For the reasons discussed below, it appears that Petitioner has failed to exhaust
21
his state remedies.
The court, therefore, orders Petitioner to show cause, on or before
22
23
October 28, 2011, why this court should not recommend dismissal without
24
prejudice based on failure to exhaust state remedies.
25
///
26
///
27
///
28
///
1
I.
2
BACKGROUND AND DISCUSSION
3
Petitioner pled guilty to second degree murder with a gun enhancement.
4
(Petition at 2.) On October 21, 2005, he was sentenced to 25 years to life. (Id.)
5
According to Petitioner, he appealed his conviction to the California Court of
6
Appeal and it was denied in 2006 (id. at 3); however, the California Appellate
7
Court’s online docket does not indicate that Petitioner ever appealed.1 Petitioner
8
indicates that he did not appeal his conviction to the California Supreme Court.
9
(Id.) He also indicates that he filed no habeas petitions in any California court.
10
11
(Id. at 4.)
It is not clear what Petitioner’s claims are. In the section of the form where
12
he is supposed to list his grounds, he refers to a declaration he filed at the same
13
time as the petition. (Id. at 6.) However, Petitioner’s declaration does not list any
14
grounds. Instead, he asks the court “to open an adequate inquiry, to review
15
Petitioner’s FBI file in camera, disclose its contents, and to afford Petitioner a
16
chance to make any amendments or discovery request available if necessary.”
17
(Petitioner Decl. at 3.) Petitioner argues that the FBI’s findings will “exonerate”
18
him. (Id.)2
19
The AEDPA provides that a petition for writ of habeas corpus brought by a
20
person in state custody “shall not be granted unless it appears that – (A) the
21
applicant has exhausted the remedies available in the courts of the State; or (b)(I)
22
there is an absence of available State corrective process; or (ii) circumstances
23
24
25
26
27
28
1
Cal. Penal Code § 1237.5 “provides that a defendant may not appeal a
judgment of conviction entered on a plea of guilty or nolo contendere without
obtaining a certificate of probable cause from the trial court, unless the appeal is
based solely upon grounds occurring after entry of the plea and which do not
challenge its validity.” People v. Placencia, 194 Cal. App. 4th 489, 493, 122 Cal.
Rptr. 3d 922 (2011).
2
In 2009, Petitioner apparently made a FOIA request to the FBI, who
responded that it did not have responsive record. (Petitioner Decl. Attached.)
Petitioner also appealed the FBI’s decision. (Id.)
2
1
exist that render such process ineffective to protect the rights of the applicant.”
2
28 U.S.C. § 2254(b)(1).
3
Exhaustion requires that Petitioner present his contentions to the state’s
4
highest court, in this case the California Supreme Court. James v. Borg, 24 F.3d
5
20, 24 (9th Cir. 1994). Petitioner bears the burden of demonstrating that he
6
described to the California Supreme Court both the operative facts and the
7
federal legal theory on which his claims are based. Duncan v. Henry, 513 U.S.
8
364, 365-66, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995).
9
As outlined above, the petition appears to be completely unexhausted and
10
is therefore subject to dismissal without prejudice. See Rasberry v. Garcia, 448
11
F.3d 1150, 1154 (9th Cir. 2006).
12
II.
13
ORDER TO SHOW CAUSE
14
IT IS THEREFORE ORDERED that, on or before October 28, 2011,
15
Petitioner shall show cause, if there be any, why this court should not recommend
16
dismissal without prejudice based on failure to exhaust state remedies.
17
Petitioner is also advised that if he fails to timely respond to this
18
Order to Show Cause, the magistrate judge will recommend that the district
19
court dismiss the petition without prejudice based on failure to exhaust
20
state remedies.
21
22
23
DATED: September 27, 2011
_________________________________
ALICIA G. ROSENBERG
United States Magistrate Judge
24
25
26
27
28
3
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
