(HC) Popke v. Andes

• Court: District Court, E.D. California
• Decided: July 9, 2024
• Docket: 1:24-cv-00779
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 DOUGLAS LOUIS POPKE, Case No. 1:24-cv-00779-EPG-HC

12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED 13 v. FOR FAILURE TO EXHAUST STATE 14 CHANCE ANDES, JUDICIAL REMEDIES 15 Respondent.

16 17 Petitioner Douglas Louis Popke is a state prisoner proceeding pro se with a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 I. 20 DISCUSSION 21 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 22 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 23 to file a response, if it “plainly appears from the petition and any attached exhibits that the 24 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 25 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 26 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 27 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state’s 1 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 2 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 3 providing the highest state court with a full and fair opportunity to consider each claim before 4 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 5 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 6 If Petitioner has not sought relief in the California Supreme Court for the claims that he 7 raises in the petition, the Court cannot proceed to the merits of those claims. 28 U.S.C. 8 § 2254(b)(1). In the petition, Petitioner raises the following claims for relief: (1) ineffective 9 assistance of counsel; (2) prosecutorial misconduct; and (3) insufficient evidence to support 10 conviction due to Fourth Amendment violation. (ECF No. 1 at 8–11.1) It appears that only 11 Petitioner’s third ground for relief (insufficient evidence to support conviction due to Fourth 12 Amendment violation) has been presented to the California Supreme Court. (Id. at 8.) The 13 prosecutorial misconduct claim was only raised on direct appeal to the California Court of 14 Appeal, (id. at 7), and it does not appear that the ineffective assistance of counsel claims have 15 been presented to any state court. It is possible, however, that Petitioner has presented his claims 16 to the California Supreme Court and failed to indicate this to the Court. Thus, Petitioner must 17 inform the Court whether all his claims have been presented to the California Supreme Court, 18 and if possible, provide the Court with a copy of the petition filed in the California Supreme 19 Court that includes the claims now presented and a file stamp showing that the petition was 20 indeed filed in the California Supreme Court. 21 II. 22 ORDER 23 Accordingly, IT IS HEREBY ORDERED that Petitioner SHALL SHOW CAUSE why 24 the petition should not be dismissed for failure to exhaust state court remedies within THIRTY 25 (30) days from the date of service of this order. 26 /// 27 /// 1 Petitioner is forewarned that failure to follow this order may result in dismissal of the 2 | petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s failure to prosecute or 3 | to comply with a court order may result in a dismissal of the action). 4 5 IT IS SO ORDERED. 6| Dated: _ July 9, 2024 |sJe— heey —— 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28