Donaldo Galaz v. People of The State of California

• Court: District Court, C.D. California
• Decided: September 11, 2024
• Docket: 2:24-cv-07517
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

11 DONALDO GALAZ, Case No. 2:24-cv-07517-DOC-KES

12 Petitioner, ORDER TO SHOW CAUSE WHY

13 v. PETITION SHOULD NOT BE DISMISSED FOR FAILURE TO STATE 14 PEOPLE OF THE STATE OF A CONGIZABLE CLAIM AND/OR CALIFORNIA, 15 LACK OF EXHAUSTION Respondent. 16

18 On September 3, 2024, Donaldo Galaz (“Petitioner”) filed a pro se Petition

19 for Writ of Habeas Corpus by a Person in State Custody under 28 U.S.C. § 2254

20 (the “Petition”), challenging the state court’s denial of his petition for resentencing 21 pursuant to California Penal Code section 1176.2. (See Dkt. 1.) Construed 22 liberally, see Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008) (district courts 23 are obligated to liberally construe pro se litigant filings), the Petition alleges the 24 following three claims: 25 (1) The superior court erroneously denied Petitioner relief under section 26 1176.2 based solely on the jury’s finding that he harbored intent to kill in 27 committing the charged crime of premeditated and deliberate attempted murder. 28 (Dkt. 1 at 5-7.) 1 (2) The superior court erred in denying Petitioner’s resentencing petition 2 without first issuing an order to show cause as to why he was not entitled to relief 3 or conducting an evidentiary hearing concerning his eligibility for relief. (Id. at 8- 4 10.) 5 (3) The superior court erred in denying Petitioner’s resentencing petition 6 because the jury instructions at his trial permitted the jury to find him guilty of 7 attempted murder based on an imputed-malice theory of guilt. (Id. at 10-13.) 8 The Court issues this Order to Show Cause directed to Petitioner because it 9 appears the Petition neither alleges any claim that is cognizable on federal habeas 10 review nor is unexhausted. 11 I. 12 PROCEDURAL HISTORY. 13 A. Trial, Direct Appeal, and Prior Federal Habeas Petitions. 14 In 1996, a Los Angeles County Superior Court jury convicted Petitioner of 15 premeditated and deliberate attempted murder, shooting at an inhabited dwelling, 16 being a felon in possession of a firearm, and conspiracy to commit murder. See 17 People v. Galaz, No. B330737, 2024 WL 1596353, at *1 (Cal. Ct. App. Apr. 12, 18 2024). He was sentenced to 85 years to life in prison. Id. He appealed, and the 19 California Court of Appel affirmed. See id. at *1, *4. He sought review in the 20 California Supreme Court, which denied review on December 22, 1998. See Cal. 21 App. Cts. Case Info., http:// appellatecases.courtinfo.ca.gov/ (search for case no. 22 S073845) (last visited Sept. 10, 2024). 23 In November 1999, Petitioner filed a federal habeas petition challenging his 24 1996 state court convictions, and that petition was denied and dismissed with 25 prejudice. See Galaz v. Ayers, No. 2:99-cv-12369-CAS-RC (C.D. Cal. filed Nov. 26 29, 1999), Dkt. 1, 21, 22. He filed a second federal habeas petition challenging his 27 1996 convictions, and that petition was dismissed as an unauthorized second or 28 successive petition. See Galaz v. McGrath, No. 2:05-cv-00356-DOC-RC (C.D. 1 Cal. filed Jan. 14, 2005), Dkt. 1, 3,4.1 2 B. Senate Bill 1437 and Petitioner’s Resentencing Petition. 3 In January 2019, California Senate Bill 1437 was enacted to “amend the 4 felony murder rule and the natural and probable consequences doctrine, as it relates 5 to murder, to ensure that murder liability is not imposed on a person who is not the 6 actual killer, did not act with the intent to kill, or was not a major participant in the 7 underlying felony who acted with reckless indifference to human life.” People v. 8 Martinez, 31 Cal. App. 5th 719, 723 (2019) (citation omitted). The bill enacted 9 former California Penal Code section 1170.95(a) to allow those so convicted to 10 “file a petition with the court that sentenced the petitioner to have the petitioner’s 11 murder conviction vacated and to be resentenced on any remaining counts.”2 Id. 12 (citation omitted). 13 Senate Bill 1437 also amended section 188 to redefine “malice” for purposes 14 of California Penal Code section 187, California’s murder statute.3 See Allen v. 15 Montgomery, No. 19-1530-VBF (PLA), 2020 WL 1991426, at *13 (C.D. Cal. Jan. 16 7, 2020), accepted by 2020 WL 6321762 (C.D. Cal. Oct. 26, 2020). As amended, 17 section 188 provides that “[m]alice shall not be imputed to a person based solely 18 on his or her participation in a crime.” Cal. Penal Code § 188(a)(3). In addition, 19 Senate Bill No. 1437 amended section 189, which defines first-degree murder, by 20 1 Petitioner filed another federal habeas petition challenging his parole 21 denial. See Galaz v. Pfeiffer, No. 2:23-cv-01504-DOC-KES (C.D. Cal. filed Feb. 22 27, 2023). That petition was transferred to the Eastern District of California. Id., Dkt. 5. 23 2 Prior to January 1, 2022, former section 1170.95 did not expressly permit a 24 petition for resentencing based on a conviction for attempted murder. But in 2022, 25 those convicted of attempted murder were permitted to file petitions for resentencing. See Cal. Penal Code § 1176.2(a). 26 27 3 Under California Penal Code section 187, “[m]urder is the unlawful killing of a human being, or a fetus, with malice aforethought.” 28 1 adding subdivision (e). See Allen, 2020 WL 1991426, at *13. Under section 2 189(e), “a participant in enumerated crimes is liable under the felony murder 3 doctrine only if he or she was the actual killer; or, with the intent to kill, aided and 4 abetted the actual killer in commission of first degree murder; or was a major 5 participant in the underlying felony and acted with reckless indifference to human 6 life.” Cal. Penal Code § 189(e). 7 On January 20, 2023, Petitioner filed a petition for resentencing pursuant to 8 former California Penal Code section 1170.95 in the superior court.4 See Galaz, 9 2024 WL 1596353, at *1. The superior court denied the petition without issuing 10 an order to show cause or conducting an evidentiary hearing because it found that 11 Petitioner “was ineligible for resentencing as a matter of law.” Id. In doing so, the 12 superior court explained that his jury “was not instructed [on] natural and probable 13 consequences” or on “implied malice.” Id. at *2. 14 Petitioner appealed. Id. at *1. The California Court of Appeal appointed 15 counsel, who reviewed the record and then “filed a brief that did not identify any 16 arguable issues.” Id. at *1. Petitioner filed a pro se supplemental brief, arguing 17 “that the trial court erred in finding he was ineligible for relief because the jury 18 convicted him under ‘a theory of imputed malice.’” Id. at *2. On April 12, 2024, 19 the California Court of Appeal affirmed, finding that he was not convicted under a 20 theory of implied malice and that his jury was not instructed on the natural-and- 21

22 4 Although Petitioner filed his resentencing petition under former section 23 1170.95, see Galaz, 2024 WL 1596353, at * 1, the Petition cites section 1172.6 (see Dkt. 1 at 1-2). There is no difference between the two statutes. The 24 California Legislature renumbered section 1170.95 as section 1172.6 “without 25 substantive changes.” People v. Strong, 13 Cal. 5th 698, 708 n.2 (2022); Thompson v. Martinez, No. 2:23-02959 KK (ADS), 2023 WL 8939217, at *1 n.1 26 (noting that “California Legislature renumbered section 1170.95 as section 1172.6 27 without making substantive changes to the statute”), accepted by 2024 WL 313612 (C.D. Cal. Jan. 25, 2024), appeal filed, No. 24-818 (9th Cir. filed Feb. 15, 2024). 28 1 probable-consequences doctrine but rather on aider-and-abettor liability. See id. at 2 *3. It also noted that the jury found that that he “acted willfully, deliberately, and 3 with premeditation” and, thus, “necessarily concluded [he] either was the actual 4 killer or was aware of the killer’s intent to kill (the unlawful purpose) and intended 5 to encourage or facilitate the actual killer’s intent to kill another human being.” Id. 6 at 3. Accordingly, the California Court of Appeal concluded that he was ineligible 7 for resentencing. See id. 8 Petitioner claims that on June 26, 2024, he attempted to file petition for 9 review in the California Supreme Court that he admits was untimely. (See Dkt. 1 10 at 18.) According to Petitioner, the court clerk refused to file it and instead 11 returned it to Petitioner, citing California Rule of Court 8.500(e).5 (Id.) Petitioner 12 maintains that he then filed a petition in the California Supreme Court, requesting 13 that it excuse his failure to timely seek review. (See id.) According to Petitioner, 14 the court clerk returned that petition to him “for lack of jurisdiction.” (Id.) The 15 California Courts’ website reflects that Petitioner did not file a petition for review 16 in the California Supreme Court, and nothing therein reflects his purported efforts 17 to do so. See Cal. App. Cts. Case Info. http://appellatecases.courtinfo.ca.gov/ 18 (search for “Galaz” in Cal. Sup. Ct. yielding no relevant results) (last visited on 19 September 10, 2024). He has filed no habeas petitions in the California Supreme 20 Court since the California Court of Appeal affirmed the superior court’s denial of 21 his resentencing petition. See id. 22 23 24 25

26 5 Rule 8.500(e), in pertinent part, provides that “[a] petition for review must 27 be served and filed within 10 days after the Court of Appeal decision is final in that court.” Cal. R. Ct. 8.500(e)(1). 28 1 II. 2 FACTUAL BACKGROUND. 3 The underlying, italicized facts are taken from the unpublished California 4 Court of Appeal decision on Petitioner’s direct appeal. See Galaz, 2024 WL 5 1596353, at *1. Unless rebutted by clear and convincing evidence, these facts may 6 be presumed correct. Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008); 28 7 U.S.C. § 2254(e)(1). 8 At approximately 6:00 p.m. on September 14, 1995, 15 to 20 people were 9 standing in the front yard of a home located in Baldwin Park. The home was a 10 frequent gathering place for members of the East Side Baldwin Park Gang. Shots 11 were fired into the front yard, but no one was injured or killed. The police arrived 12 shortly after the shooting and saw [Petitioner], who was holding a handgun, get 13 into the passenger side of a pickup truck. The truck sped away, and the officers 14 gave chase. 15 During the chase, three handguns were thrown from the truck. The truck hit 16 a curb and blew a tire, forcing it to stop, and four men got out and began running. 17 The police apprehended three of the men, including [Petitioner]. The police 18 recovered the three .38-caliber semi-automatic weapons that had been thrown 19 from the truck, as well as bullet casings found at the residence. The bullet casings 20 matched the guns thrown from the truck. Eyewitnesses also placed [Petitioner] in 21 the driveway during the shooting. 22 See, Galaz, 2024 WL 1596353, at *1 (footnote omitted). 23 III. 24 DISCUSSION. 25 A. Duty to Screen. 26 Under Rule 4 of the Rules Governing § 2254 Cases, courts must summarily 27 dismiss a petition “[i]f it plainly appears from the face of the petition . . . that the 28 petitioner is not entitled to relief in the district court.” “If a petition is ‘facially 1 defective,’ ‘a dismissal may be called for on procedural grounds, which may avoid 2 burdening the respondent with the necessity of filing an answer on the substantive 3 merits of the petition.’” Neiss v. Bludworth, __ F.4th __, 2024 WL 3838427, at 4 *5 (9th Cir. Aug. 16, 2024) (citations omitted). Rule 4 also permits courts to 5 dismiss claims “that are clearly not cognizable.” Id. In determining whether 6 dismissal is warranted under Rule 4, “the standard is not whether the claim will 7 ultimately – or even likely – succeed or fail, but rather, whether the petition states a 8 cognizable, non-frivolous claim.”6 Id. 9 B. Failure to State a Cognizable Claim. 10 1. Applicable Law. 11 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 12 limits federal habeas corpus relief to claims that “a petitioner has been convicted or 13 sentenced in violation of the Constitution, laws, or treaties of the United States. 28 14 U.S.C. § 2254(a). This means that relief is not available for errors in the 15 interpretation or application of state law. See Swarthout v. Cooke, 562 U.S. 216, 16 219 (2011); Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (“It is not the 17 province of a federal habeas court to reexamine state-court determinations on state- 18 law questions.”). 19 2. Analysis. 20 A review of Petitioner’s claims suggests that he has failed to state a 21 cognizable claim for relief. Each claim challenges to the denial of his section 22 1170.95 resentencing petition. Federal courts have routinely held that challenges 23

24 6 In Neiss, the Ninth Circuit held the district court misapplied Rule 4 by 25 dismissing the petitioner’s cognizable ineffective-assistance claims as meritless. See 2024 WL 3838427, at *6. As explained below, the Petition appears to be 26 unexhausted and allege only claims that are not cognizable on federal habeas 27 review; thus, dismissal of the Petition would not be contingent on the merits of any of its claims. Accordingly, dismissal under Rule 4 is potentially appropriate. 28 1 to denials of section 1170.95 resentencing petitions “pertain solely to the state 2 court’s interpretation and application of state sentencing law and therefore are not 3 cognizable” on federal habeas review. Cole v. Sullivan, 480 F. Supp. 3d 1089, 4 1097 (C.D. Cal. 2020); Clemons v. Johnson, No. 2:22-cv-05719-MWF (AFM), 5 2023 WL 5184181, at *2 (C.D. Cal. June 16, 2023) (same), accepted by 2023 WL 6 5180324 (C.D. Cal. Aug. 10, 2023); Allen, 2020 WL 1991426, at *13 (C.D. Cal. 7 Jan. 7, 2020) (same); see also Walker v. Cal. Sup. Ct., No. CV 22-4638-CAS(E), 8 2022 WL 11337927, at *2 (C.D. Cal. Sept. 13, 2022) (same under section 1172.6), 9 accepted by 2022 WL 11269388 (C.D. Cal. Oct. 13, 2022); McCavitt v. Costello, 10 No. 2:22-cv-1926 KJM KJN P, 2022 WL 17813204, at *2-3 (E.D. Cal. Dec. 12, 11 2022) (same), accepted by 2023 WL 2602019 (E.D. Cal. Mar. 22, 2023). 12 Petitioner’s challenges to his eligibility for resentencing under former section 13 1170.95 likewise present only state-law claims and therefore appear to not be 14 cognizable on federal habeas review. 15 The same is true concerning Petitioner’s claim that the superior court erred 16 in denying his resentencing petition without first issuing an order to show cause or 17 conducting an evidentiary hearing. At bottom, that claim alleges only that the 18 superior court erred in finding that he failed to establish a prima facie case for 19 relief under section 1172.6. See Cal. Penal Code § 1172.6(c) (explaining that 20 courts do not need to hold evidentiary hearings concerning resentencing petitions 21 unless “petitioner makes a prima facie showing that the petitioner is entitled to 22 relief”). As such, that claim – like his others – does not appear to be cognizable. 23 See Demery v. Core, No. 2:23-cv-00220-GW (AFM), 2023 WL 4566286, at *2 24 (C.D. Cal. Mar. 15, 2023) (petitioner’s claim that superior court erred in summarily 25 denying her petition for resentencing without providing her a hearing concerned 26 only state law and, thus, was not cognizable on federal habeas review), accepted by 27 2023 WL 4564400 (C.D. Cal. July 14, 2023). 28 In any event, nothing suggests that the superior court misapplied state law in 1 summarily denying Petitioner’s resentencing petition. In the California Court of 2 Appeal, Petitioner argued “the trial court erred in finding he was ineligible for 3 relief because the jury convicted him under ‘a theory of imputed malice.’” Galaz, 4 2024 WL 1596353, at *2. But as the California Court of Appeal found, he was not 5 convicted under a theory of imputed malice, and his jury was not instructed on the 6 natural-and-probable-consequences doctrine but rather on aider-and-abettor 7 liability. See id. at *3. More importantly, the jury found that he “acted willfully, 8 deliberately, and with premeditation” and, thus, “necessarily concluded [he] either 9 was the actual killer or was aware of the killer’s intent to kill (the unlawful 10 purpose) and intended to encourage or facilitate the actual killer’s intent to kill 11 another human being.” Id. Citing those facts, the California Court of Appeal held 12 that the superior court did not err in concluding he was ineligible for resentencing 13 as a matter of law. See id. That holding is binding on this Court. See Bradshaw v. 14 Richey, 546 U.S. 74, 76 (2005) (per curiam) (“A state court’s interpretation of state 15 law, including one announced on direct appeal of the challenged conviction, binds 16 a federal court sitting in habeas corpus”). And even if the Court had the ability to 17 review questions of state law – which it does not – Petitioner appears to be unable 18 to show that the superior court erred in finding that he failed to make a prima facie 19 case for relief under former section 1170.95 for the reasons explained above. See 20 Cal. Penal Code § 189(e). 21 Moreover, even if Petitioner had cloaked his claims in his constitutional 22 right to due process or any other constitutional right – which he has not – that 23 alone would be insufficient to render his otherwise state-law claims cognizable 24 federal ones. A federal habeas petitioner may not transform a state-law issue into a 25 federal one merely by making a general appeal to a constitutional guarantee. See 26 Gray v. Netherland, 518 U.S. 152, 163 (1996); Cacoperdo v. Demosthenes, 37 27 F.3d 504, 507 (9th Cir. 1994); Miller v. Stagner, 757 F.2d 988, 993-94 (9th Cir. 28 1985); Walker v. Cal. Sup. Ct., No. CV 22-4638-CAS (E), 2022 WL 11337927, at 1 *2 (C.D. Cal. Sept. 13, 2022) (petitioner’s allegation that state court violated due 2 process in denying section 1170.95 resentencing petition was not sufficient to 3 transform his state-law claim into cognizable federal one), accepted by 2022 WL 4 11269388 (C.D. Cal. Oct. 13, 2022).7 5 C. Exhaustion. 6 1. Applicable Law. 7 Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a 8 petitioner has exhausted the remedies available in state court. Exhaustion requires 9 that the petitioner’s contentions were fairly presented to the state courts, Ybarra v. 10 McDaniel, 656 F.3d 984, 991 (9th Cir. 2011), and disposed of on the merits by the 11 highest court of the state, Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002). 12 To satisfy the fair-presentation requirement, the petitioner’s state-court filings must 13 describe “the operative facts and the federal legal theory on which his claim is 14 based.” Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008). As a matter of 15 comity, a federal court will not entertain a habeas petition unless the petitioner has 16 exhausted the available state judicial remedies on every ground presented in it. 17 See Rose v. Lundy, 455 U.S. 509, 518-19 (1982). 18 19 7 The Ninth Circuit has suggested in dictum that a petitioner challenging the 20 denial of a resentencing petition brought under a different state statute might have 21 a protected liberty interest in the state court’s alleged failure to hold a hearing on his claim when it presents an issue has not yet been clearly decided. See Clayton 22 v. Biter, 868 F.3d 840, 846 n.2 (9th Cir. 2017). Of course, the Ninth Circuit has 23 not held as much, nor did its dictum in Clayton even address the statute under which Petitioner seeks relief. What’s more, Petitioner has not alleged that he had a 24 protected liberty interest in the superior court conducting an evidentiary hearing. 25 Putting that aside, it was clear that Petitioner was not entitled to relief because the jury did not convict him under a theory of imputed malice but rather found that he 26 acted with premeditation and deliberation concerning the attempted murder. Thus, 27 even if Clayton’s dictum were applicable and controlling, it would not render his claim cognizable. 28 1 2. Analysis. 2 The Petition appears to be unexhausted. Petitioner challenged the denial of 3 his resentencing petition in the California Court of Appeal. See Galaz, 2024 WL 4 1596353, at *1-3. But he evidently has not done so in the California Supreme 5 Court. To be sure, he claims to have attempted to have filed a petition for review 6 in the California Supreme Court (see Dkt. 1 at 2, 18), but nothing on the California 7 Courts’ website reflects any such attempt. See Cal. App. Cts. Case Info., 8 http://appellatecases.courtinfo.ca.gov/ (search for “Galaz” in Cal. Sup. Ct., yielding 9 no relevant results) (last visited Sept. 10, 2024). Although he claims that the 10 California Supreme Court’s court clerk refused to file his petition for review 11 because it was untimely (see Dkt. 1 at 18), he provides no letter or other document 12 from the California Supreme Court’s court clerk to substantiate that claim. The 13 same is true concerning his claim that court clerk refused to file his subsequent 14 petition requesting that the California Supreme Court excuse his failure to timely 15 seek review. In any event, “[s]ubmitting a new claim to the state’s highest court in 16 a procedural context in which its merits will not be considered absent special 17 circumstances does not constitute fair presentation.” Roettgen v. Copeland, 33 18 F.3d 36, 39 (9th Cir. 1994); see Regennitter v. CSP-CORCORAN, No. 1:15-cv- 19 00160-LJO (JLT), 2015 WL 2081814, at *3 (E.D. Cal. May 4, 2015) (“[T]he mere 20 act of sending a procedurally defective set of claims to the California Supreme 21 Court [in an untimely petition for review] does not, for exhaustion purposes, 22 constitute ‘fairly presenting’ those claims to the state court.”; collecting cases); 23 Davis v. Adams, No. CV10-695-AHM (E), 2010 WL 1408290, at *2 (C.D. Cal. 24 Mar. 3, 2010) (“Because the California Supreme Court rejected Petitioner’s 25 Petition for Review for filing as untimely, the present Petition is unexhausted.”), 26 accepted by 2010 WL 1408292 (C.D. Cal. Mar. 30, 2010). 27 Moreover, even if seeking review in the California Supreme Court was not a 28 viable option because he failed to do so in a timely manner, Petitioner nevertheless 1 could have asserted the Petition’s claims in a habeas petition in the California 2 Supreme Court. But he did not do so. See Cal. App. Cts. Case Info., 3 http://appellatecases.courtinfo.ca.gov/ (search for “Galaz” in Cal. Sup. Ct., yielding 4 no relevant results) (last visited Sept. 10, 2024). To be sure, the California 5 Supreme Court might find on habeas review that Petitioner’s failure to raise the 6 Petition’s claims on direct review precludes him from doing so in a habeas 7 petition. See Ex parte Dixon, 41 Cal. 2d 756, 759 (1953) (explaining that a habeas 8 petition is procedurally barred when “the claimed errors could have been, but were 9 not, raised upon a timely appeal from a judgment of conviction”); see also Johnson 10 v. Lee, 578 U.S. 605, 609 (2016) (per curiam) (Dixon rule “qualifies as adequate to 11 bar federal habeas review”). But even when there exists an applicable state 12 procedural bar, the California Supreme Court nevertheless might choose to reach 13 the merits of a petitioner’s state habeas claims. See Park v. California, 202 F.3d 14 1146 (9th Cir. 2000). Thus, the possibility that the California Supreme Court 15 might impose the Dixon rule to deny a habeas petition asserting the Petition’s 16 claims would not relieve Petitioner from attempting to assert them in the California 17 Supreme Court. 18 Finally, it appears that Petitioner could not have exhausted the Petition’s 19 claims unless he had filed a habeas petition in the California Supreme Court. He 20 evidently did not assert any of the Petition’s claims in his direct appeal to the 21 California Court of Appeal. Indeed, the California Court of Appeal identified only 22 one claim that Petitioner raised – namely, that “the trial court erred in finding he 23 was ineligible for relief because the jury convicted him under ‘a theory of imputed 24 malice.’” Galaz, 2024 WL 1596353, at *2. Its decision does not allude to the 25 superior court’s purported errors in relying on a faulty jury instruction or on the 26 jury’s finding concerning Petitioner’s intent to kill, and it does not mention 27 Petitioner’s claim that the superior court erred in failing to issue an order to show 28 cause or conduct an evidentiary hearing. As such, Petitioner could not have 1 exhausted those claims by asserting them in a petition for review in the California 2 Supreme Court. See Casey v. Moore, 386 F.3d 896, 917 (9th Cir. 2004) (petitioner 3 “did not fairly present his federal law claims when he raised them for the first and 4 only time upon petitioning for discretionary review” in state’s highest court). As 5 such, it appears that he would have had to have filed a habeas petition in the 6 California Supreme Court to exhaust them.8 As such, it appears that he has not 7 exhausted the Petition’s claims. 8 IV. 9 CONCLUSION. 10 IT IS HEREBY ORDERED that, on or before October 10, 2024, Petitioner 11 is ordered to show cause why the Petition should not be dismissed with prejudice 12 for failing to state a cognizable claim or without prejudice for failure to exhaust. 13 In his response to this OSC, he should do one of the following: 14 (1) Request that the Petition be dismissed without prejudice, with the 15 understanding that any later petition might be time barred under § 2244(d)(1); or 16 (2) File a written response to this OSC explaining (a) how each of the 17 Petition’s claims is cognizable on federal habeas review and (b) when and how he 18 exhausted the Petition’s claims. If he contends that the Petition’s claims are 19 cognizable but unexhausted, he may file a formal stay-and-abey motion under 20 Rhines v. Weber, 544 U.S. 269 (2005), if he believes he can make the required 21 22 23 24 25 8 If Petitioner contends that he asserted some or all of the Petition’s claims in 26 the “three-page” supplemental brief he filed in the California Court of Appeal, 27 Galaz, 2024 WL 1596353, at *2, he must allege that in his response to this order to show cause and attach a copy of the supplemental brief to his response. 28 1 | showings.’ 2 Failure to timely respond to this OSC may result in the dismissal of this case 3 | for failure to prosecute and/or failure to comply with the Court’s order. Petitioner 4 | may wish to call the pro se clinic to schedule an appointment for free legal 5 | assistance. The pro se clinic at the federal courthouse in Riverside, California, 6 || may be reached at 951-682-7968. 7 8 | DATED: September 11, 2024 Tram) Scot? 9 KAREN E. SCOTT United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23, ———_ ? Under Rhines, the prerequisites for obtaining a stay while the petitioner 24 | exhausts his state remedies are as follows: (1) he must show good cause for his 25 | failure to earlier exhaust the claim in state court, (2) the unexhausted claim must not be “plainly meritless,” and (3) he must not have engaged in “abusive litigation 26 | tactics or intentional delay.” 544 U.S. at 277-78. Although Petitioner needs the 27 | Court’s permission for a stay, nothing prevents him from returning to state court to 38 immediately attempt to exhaust his unexhausted claim. 14