Jerome Eugene Kelly v. E. Mejia

• Court: District Court, C.D. California
• Decided: February 25, 2026
• Docket: 2:25-cv-00192
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JEROME EUGENE KELLLY, Case No. 8:25-cv-02843-FWS-PD 12 Petitioner, ORDER (1) TO SHOW CAUSE 13 WHY PETITION SHOULD v. 14 NOT BE DISMISSED AND (2) TO FILE COMPLETED E. MEJIA, 15 DECLARATION IN SUPPORT 16 Respondent. OF REQUEST TO PROCEED IN FORMA PAUPERIS OR 17 PAY FILING FEE

18 19 20 On December 9, 2025, Petitioner Jerome Eugene Kelly, proceeding pro 21 se, constructively filed a Petition for Writ of Habeas Corpus by a Person in 22 State Custody pursuant to 28 U.S.C. § 2254, asserting two grounds for relief. 1 23

24 1 Under the mailbox rule of Houston v. Lack, 487 U.S. 266, 275-76 (1988), a prisoner 25 constructively files something on the day he gives it to prison authorities for forwarding to the relevant court. See Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th 26 Cir. 2010). Courts presume that is the day the prisoner signs the document unless there is evidence to the contrary. See Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th 27 Cir. 2014) (per curiam) (as amended). Here, Petitioner apparently signed the 28 Petition on December 9, 2025. The Court therefore uses that date as the Petition’s 1 The Court orders Petitioner to show cause why the Petition should not be 2 dismissed because, on its face, it suggests that both claims are untimely and 3 that one of the claims is both not cognizable on federal habeas review and 4 unexhausted. The Court also orders Petitioner to either file a completed 5 declaration in support of his request to proceed in forma pauperis or pay the 6 appropriate filing fee. 7 I. Procedural History and Petitioner’s Contentions 8 A. Trial and Direct Appeal 9 In July 2011, an Orange County Superior Court jury found Petitioner 10 guilty of kidnapping, kidnapping to commit a sex offense, forcible oral 11 copulation, and two counts of forcible sodomy. See Kelly v. Lizarraga, No. 12 8:15-cv-00263-GW-PJW, Dkt. No. 20 at 1 (C.D. Cal. filed on Feb. 13, 2015).2 13 After he was found to have been previously convicted of a strike under 14 California’s Three Strikes law, he was sentenced to 120 years to life in prison. 15 See id. at 2. 16 Petitioner appealed, and on September 13, 2013, the California Court of 17 Appeal modified his sentence but otherwise affirmed. See id., Dkt. No. 16-13. 18 He sought review in the California Supreme Court, which denied review on 19 November 26, 2013. See Cal. App. Cts. Case Info., available at http:// 20 appellatecases.courtinfo.ca.gov/ (search case no. S214165) (last visited Feb. 21 24, 2026). 22 23

24 LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (mailbox rule applies to state habeas 25 petitions).

26 2 As related below, Petitioner has previously filed a federal habeas petition challenging his 2011 state-court convictions. The Court takes judicial notice of that 27 petition as well as the relevant filings and lodgments in connection with that case. 28 See Harris v. County of Orange, 682 F. 3d 1126, 1131-32 (9th Cir. 2012); Fed. R. Evid. 1 B. Prior Federal Habeas Petition 2 This is not the first federal habeas petition that Petitioner has filed 3 challenging his 2011 state-court convictions and sentence. On February 13, 4 2015, he filed his first one, which was denied with prejudice on its merits on 5 January 17, 2017. See Kelly, Dkt. Nos. 20, 23-24. 6 C. Subsequent State-Court Proceedings 7 8 One of the Petition’s grounds for relief concerns Petitioner’s sentence. 9 More than six years after the original sentencing, the Correctional Case 10 Records Manager sent a letter to the trial court indicating that Petitioner’s 11 abstract of judgment was incorrect. See Dkt. No. 1 at 29. On March 3, 2021, 12 the trial court “corrected” Petitioner’s sentence by ordering that he be 13 sentenced to 100 years to life plus five years. However, no resulting abstract 14 of judgment was ever issued.3 See id. at 30. 15 The Petition’s other ground for relief concerns the California Racial 16 Justice Act (“CRJA”), which became effective on January 1, 2021. See Rose v. 17 Warden, No. 2:22-cv-08155-DOC(LAL), 2023 WL 9601243, at *9 (C.D. Cal. 18 Dec. 23. 2023). The CRJA prohibits the state from “seek[ing] or obtain[ing] a 19 criminal conviction or seek[ing], obtain[ing], or impos[ing] a sentence on the 20 basis of race, ethnicity, or national origin.” Cal. Penal Code § 745(a). 21 Although it initially applied only to convictions that were not yet final before 22 its effective date, it was amended on January 1, 2023, to provide that, 23 beginning on January 1, 2024, petitioners may challenge sentences regardless 24 of when their judgments became final. See Cal. Penal Code § 745(j)(3); see 25 also Assemb. Bill 256, 2022 Cal. Legis. Serv. Ch. 739 § 2. 26 27

28 3 The Court derives this information from the documents that Petitioner attached to 1 In March 2024, Petitioner filed a habeas petition in superior court, 2 alleging a CRJA violation, and on March 27, 2024, the superior court denied 3 it. See Dkt. No. 1 at 3-4. On May 14 and May 29, 2024, he filed motions 4 under California Penal Code section 745(d) seeking discovery to establish a 5 potential CRJA violation, and the superior court denied both. See Cal. App. 6 Cts. Case Info., http://appellatecases.courtinfo.ca.gov/ (search for case no. 7 G064535) (last visited Feb. 24, 2026). Petitioner appealed, and on September 8 26, 2024, the California Court of Appeal dismissed the appeal. See id. 9 On August 21, 2024, he filed a habeas petition in the California 10 Supreme Court, alleging violations of the CRJA and seeking discovery to 11 support those claims. See Cal. App. Cts. Case Info., available at http:// 12 appellatecases.courtinfo.ca.gov/ (search for case no. S286529) (last visited Feb. 13 24, 2026). On August 27, 2025, the California Supreme Court denied the 14 petition without prejudice, noting that it had granted review in a case that 15 might affect the availability of discovery under the CRJA, which in turn might 16 affect Petitioner’s ability to plead such claims.4 See id. 17 D. The Instant Petition 18 On December 9, 2025, Petitioner constructively filed the instant 19 Petition. Liberally construed, see Woods v. Carey, 525 F.3d 886, 889-90 (9th 20 Cir. 2008) (district courts are obligated to liberally construe pro se litigant 21 filings), the Petition states the following two grounds for relief: (1) the 22 prosecutor racially discriminated against Petitioner, an African American, by 23 charging him with offenses that would not have been brought against a white 24 25 4 On June 27, 2024, Petitioner filed a request for resentencing in the superior court, 26 which denied it. See Cal. App. Cts. Case Info., http://appellatecases.courtinfo.ca.gov/ (search for case no. G064664) (last visited Feb. 24, 2026). He appealed, and on 27 October 31, 2024, the court of appeal dismissed the appeal. See id. It does not 28 appear that those proceedings bore any relation to Petitioner’s state-court CRJA- 1 defendant; and (2) Petitioner’s sentence is improper because the trial court 2 failed to enter an abstract of judgment after amending his sentence. See Dkt. 3 No. 1 at 5-9. 4 II. Discussion 5 A. The Petition Appears Subject to Dismissal 6 1. Duty to Screen 7 Rule 4 of the Rules Governing § 2254 Cases requires the Court to 8 conduct a preliminary review of the Petition. Pursuant to Rule 4, the Court 9 must summarily dismiss a petition “[i]f it plainly appears from the face of the 10 petition . . . that the petitioner is not entitled to relief in the district court.” 11 Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 12 F.2d 490 (9th Cir. 1990). Rule 4 permits courts to dismiss claims that are 13 “untimely,” clearly not cognizable,” or unexhausted. Neiss v. Bludworth, 114 14 F.4th 1038, 1041, 1045 (9th Cir. 2024) (citations omitted). 15 As explained below, a review of the Petition suggests that both of its 16 claims are untimely and that its second claim is not cognizable and is 17 unexhausted.5 18 2. The Petition Appears to Be Facially Untimely 19 a) The Limitation Period 20 21 The AEDPA imposes a one-year period of limitation for state prisoners 22

23 5 The Court does not address whether the Petition is second or successive because Petitioner’s submissions – which the Court presumes to be true – indicate that the 24 trial court entered an intervening judgment after his first federal habeas petition 25 was denied. See Dkt. No. 1 at 29-30; Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018) (claim in second petition is not successive “if it is based on an intervening 26 state court judgment . . . notwithstanding that the same claim . . . could have been brought in the first petition”). However, the Court makes no definitive finding on 27 that issue. Should Petitioner’s response be sufficient to discharge this order to show 28 cause, nothing in this order precludes Respondent from arguing that the Petition is 1 to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The 2 one-year limitations period runs from the latest of the four following dates: 3 (A) the date on which the judgment became final by the 4 conclusion of direct review or the expiration of the time for seeking such review; 5 (B) the date on which the impediment to filing an 6 application created by State action in violation of the 7 Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 8 (C) the date on which the constitutional right asserted was 9 initially recognized by the Supreme Court, if the right has 10 been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 11 12 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the 13 exercise of due diligence. 14 28 U.S.C. §§ 2244(d)(1)(A)-(D). The Ninth Circuit has held that “the 15 judgment from which the AEDPA statute of limitations runs is the one 16 pursuant to which the petitioner is incarcerated.” Smith v. Williams, 871 17 F.3d 684, 687 (9th Cir. 2017). 18 Here, the California Supreme Court denied Petitioner’s petition for 19 review on November 26, 2013. See Cal. App. Cts. Case Info., available at 20 http://appellatecases.courtinfo.ca.gov/ (search case no. S214165) (last visited 21 Feb. 24, 2026). That conviction became final 90 days later, see Zepeda v. 22 Walker, 581 F.3d 1013, 1016 (9th Cir. 2009), but his sentence was evidently 23 amended on March 3, 2021, see Dkt. No. 1 at 30. As such, he is incarcerated 24 pursuant to the resulting judgment. See Marquez v. McDaniel, 729 F. App’x 25 583, 584 (9th Cir. 2018) (“Where an amended or corrected judgment is 26 entered, . . . the one-year [statute of limitations] period runs from the date of 27 the amended judgment.”). He did not appeal, see Cal. App. Cts. Case Info., 28 1 http://appellatecases.courtinfo.ca.gov/ (search for “Jerome” with “Eugene” and 2 “Kelly”) (last visited Feb. 24, 2026), and consequently his judgment became 3 final 60 days later, on May 3, 2021, see Cal. R. Ct. 8.308(a) (notice of appeal 4 must be filed within 60 days of judgment); Caspari v. Bohlen, 510 U.S. 383, 5 390 (1994) (state conviction and sentence become final when availability of 6 direct appeal has been exhausted and time for filing petition for writ of 7 certiorari has elapsed or timely filed petition has been denied).6 The 8 limitation period for seeking federal habeas relief, therefore, ended one year 9 later, on May 3, 2022. See § 2244(d). 10 Petitioner constructively filed the instant Petition over three years after 11 that deadline, on December 9, 2025. See Dkt. No. 1 at 12. He does not 12 contend that he is entitled to a later trigger date of the limitation period 13 under § 2244(d)(1)(B) or (C), and no such basis is apparent to the Court. To 14 the contrary, Petitioner was aware of the facts underlying the Petition’s first 15 ground for relief when he was charged with the crimes leading to his 16 convictions, see Dkt. No. 1 at 5-8 (alleging racial discrimination because no 17 evidence supported the charges against him),7 and he was aware of the facts 18 19 6 Petitioner could not have filed a petition for writ of certiorari concerning his new sentence in the U.S. Supreme Court because he did not appeal to the highest state 20 court. See 28 U.S.C. § 1257(a); Sup. Ct. R. 13(1).

21 7 Giving Petitioner every benefit of the doubt, the Court construes the Petition’s first 22 ground for relief as alleging that the prosecutor violated due process by racially discriminating against Petitioner. See Dkt. No. 1 at 5-8. To the extent it solely 23 alleges a CRJA violation, that claim is arguably not barred by the statute of limitations but nevertheless fails because it is not cognizable on federal habeas 24 review. See Whitaker v. Horn, No. 2:25-CV-0747 TLN CSK P, 2025 WL 1807056, at 25 *4 (E.D. Cal. July 1, 2025) (claim alleging CRJA violation was not cognizable on federal habeas review; collecting cases); Wynn v. Foulk, No. 20-cv-00181-SI, 2021 26 WL 6135325, at *4 (N.D. Cal. Dec. 29, 2021) (holding that petitioner was not entitled to relief under the CRJA because federal habeas court only has “authority to review 27 violations of federal law, not claims arising under state statutory law”); see also 28 Maddox v. Andre, No. 5:22-cv-00803-FLA-SHK, 2023 WL 3432124, at *2 n.4 (C.D. 1 concerning his second ground for relief no later than April 6, 2021, see id. at 2 30 (reflecting that private counsel informed Petitioner on Apr. 6, 2021, that 3 abstract of judgment concerning amended sentence had not been entered). 4 Consequently, the present action is untimely unless he is entitled to statutory 5 or equitable tolling of the limitation period or he shows that a fundamental 6 miscarriage of justice would result if the Court does not address the merits of 7 his claims. 8 b) Statutory Tolling 9 The one-year limitation period is “statutorily tolled” while a “properly 10 filed application for State post-conviction or other collateral review with 11 respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). 12 The statute is not tolled between the time a final decision is issued on direct 13 review and the time the first state collateral challenge is filed, because there 14 is no case “pending” during that time. See Nino v. Galaza, 183 F.3d 1003, 15 1006 (9th Cir. 1999). However, the statute is tolled for the time during which 16 a state prisoner is attempting, through proper use of state court procedures, 17 to exhaust state court remedies regarding a particular post-conviction 18 application. Once an application for post-conviction review commences, it is 19 “pending” until a petitioner “complete[s] a full round of [state] collateral 20 review.” Delhomme v. Ramirez, 340 F.3d 817, 819 (9th Cir. 2003) (citing 21 Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003)). 22 Here, statutory tolling does not render the Petition timely. Petitioner’s 23 sentence was amended on March 3, 2021, and he did not constructively file a 24 state-court habeas petition until March 14, 2024, see Dkt. No. 1 at 3. As such, 25 neither that petition nor any of his subsequent state-court petitions could 26 have tolled the limitation period because it had already expired. See Ferguson 27

28 was unexhausted and noting that “exhaustion would be futile because only a state- 1 v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (“[S]ection 2244(d) does not 2 permit the reinitiation of the limitations period that has ended before the 3 state petition was filed.”). 4 c) Equitable Tolling 5 The one-year limitations period is subject to equitable tolling in 6 appropriate cases. See Holland v. Florida, 560 U.S. 631, 645 (2010). “[T]he 7 threshold necessary to trigger equitable tolling is very high, lest the 8 exceptions swallow the rule.” Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 9 2006) (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). To 10 qualify, a petitioner has the burden to demonstrate (1) that he has been 11 pursuing his rights diligently, and (2) that an “extraordinary circumstance” 12 stood in his way that prevented him from timely filing. Holland, 560 U.S. at 13 649 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). 14 To show “extraordinary circumstances,” a petitioner must show that 15 “the circumstances that caused his delay are both extraordinary and beyond 16 his control” – a high threshold. Menominee Indian Tribe of Wisconsin v. 17 United States, 577 U.S. 250, 255 (2016). In addition, a petitioner must show 18 that the extraordinary circumstances caused the untimely filing of his habeas 19 petition. See Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citing 20 Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)); see also Smith v. Davis, 21 953 F.3d 582, 595 (9th Cir. 2020) (“Whether an impediment caused by 22 extraordinary circumstances prevented timely filing is a ‘causation 23 question.’”). 24 To demonstrate that he has been pursuing his rights diligently, a 25 petitioner must show that he has “been reasonably diligent in pursuing his 26 rights not only while an impediment to filing caused by an extraordinary 27 circumstance existed, but before and after as well, up to the time of filing his 28 claim in federal court.” Smith, 953 F.3d at 598-99. In other words, “when 1 [the petitioner] is free from the extraordinary circumstance, he must also be 2 diligent in actively pursuing his rights.” Id. at 599. Because Petitioner must 3 show diligence before, during, and after extraordinary circumstances 4 prevented him from filing, see Smith, 953 F.3d at 598-99, he must show 5 diligence during the period from May 4, 2021, the day the statute of 6 limitations began to run, see Patterson v. Stewart, 251 F.3d 1243, 1246 (9th 7 Cir. 2001) (holding that AEDPA limitation period begins running day after 8 triggering event), to December 9, 2025, the day he constructively filed the 9 Petition, see Dkt. No. 1 at 12. 10 Here, Petitioner has alleged no facts that could warrant equitable 11 tolling. Accordingly, the Petition appears to be untimely, and it can proceed 12 only if Petitioner can make a sufficient showing that he is actually innocent 13 under Schlup v. Delo, 513 U.S. 298 (1995), and McQuiggin v. Perkins, 569 14 U.S. 383 (2013). 15 d) Actual Innocence 16 “[A]ctual innocence, if proved, serves as a gateway through which a 17 petitioner may pass . . . [despite] the impediment [of] . . . expiration of the 18 statute of limitations.” McQuiggin, 569 U.S. at 386; see also Lee v. Lampert, 19 653 F.3d 929, 934–37 (9th Cir. 2011) (en banc). But “tenable actual-innocence 20 gateway pleas are rare.” McQuiggin, 569 U.S. at 386. The Schlup standard is 21 “demanding” and “permits review only in the ‘extraordinary’ case.” House v. 22 Bell, 547 U.S. 518, 538 (2006) (quoting Schlup, 513 U.S. at 327). The evidence 23 of actual innocence must be “so strong that a court cannot have confidence in 24 the outcome of the trial unless the court is also satisfied that the trial was free 25 of nonharmless constitutional error.” Schlup, 513 U.S. at 316. 26 In particular, the petitioner must “support his allegations of 27 constitutional error with new reliable evidence – whether it be exculpatory 28 1 scientific evidence, trustworthy eyewitness accounts, or critical physical 2 evidence” – showing that “a constitutional violation has probably resulted in 3 [his] conviction.” Id. at 324, 327 (citation omitted) (recognizing that 4 “[b]ecause such evidence is obviously unavailable in the vast majority of cases, 5 claims of actual innocence are rarely successful”). “New” evidence is “relevant 6 evidence that was either excluded or unavailable at trial.” Id. at 327-28; 7 Chestang v. Sisto, 522 F. App’x 389, 391 (9th Cir. 2013) (explaining that 8 “actual innocence claims focus on ‘new’ evidence – i.e., ‘relevant evidence that 9 was either excluded or unavailable at trial’” (quoting Schlup, 513 U.S. at 327- 10 28)). Once a petitioner presents such evidence, the habeas court must 11 consider “all the evidence, old and new, incriminating and exculpatory, 12 admissible at trial or not.” Lee, 653 F.3d at 938 (citing House, 547 U.S. at 13 538). In sum, the petitioner must show that “it is more likely than not that no 14 reasonable juror would have convicted him in light of the new evidence.” 15 Schlup, 513 U.S. at 327. 16 Here, Petitioner has failed to show that he is actually innocent of any of 17 the crimes underlying his current incarceration. He provides no new evidence 18 suggesting as much. Instead, he alleges that there was insufficient evidence 19 to support any of the charged counts and notes that some of the victims 20 provided inconsistent testimony. See Dkt. No. 1 at 6. But those allegations – 21 even if they were true – are not sufficient to meet Schlup’s demanding 22 standard. See Bousley v. United States, 523 U.S. 614, 623 (1998) ( “‘[A]ctual 23 innocence’ means factual innocence, not mere legal insufficiency.”); Garcia v. 24 Long, No. ED CV 12-1201-DMG (RZ), 2012 WL 7807309, at *5 (C.D. Cal. Oct. 25 26, 2012) (petitioner could not show that failure to consider merits of 26 sufficiency-of-evidence claim would result in fundamental miscarriage of 27 justice under Schlup when he merely argued that “the prosecutor failed to 28 introduce sufficient evidence to support his conviction”), accepted by 2013 WL 1 1247710 (C.D. Cal. Mar. 26, 2013). 2 Accordingly, it appears that the Petition is time-barred and should be 3 dismissed. 4 3. The Petition’s Second Ground For Relief Does Not Appear to Present a Cognizable Federal Habeas 5 Claim 6 AEDPA limits federal habeas corpus relief to claims that “a petitioner 7 has been convicted or sentenced in violation of the Constitution, laws, or 8 treaties of the United States.” 28 U.S.C. § 2254(a). This means that relief is 9 not available for errors in the interpretation or application of state law. See 10 Swarthout v. Cooke, 562 U.S. 216, 219 (2011); Waddington v. Sarausad, 555 11 U.S. 179, 192 n.5 (2009) (“It is not the province of a federal habeas court to 12 reexamine state-court determinations on state-law questions.”). 13 “Absent a showing of fundamental unfairness, a state court’s 14 misapplication of its own sentencing laws does not justify federal habeas 15 relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). “A habeas 16 petitioner must show that an alleged state sentencing error was ‘so arbitrary 17 or capricious as to constitute an independent due process violation.’” Nelson 18 v. Biter, 33 F. Supp. 3d 1173, 1177 (C.D. Cal. 2014) (quoting Richmond v. 19 Lewis, 506 U.S. 40, 50 (1992)). 20 Here, Petitioner’s second ground for relief does not appear to be 21 cognizable. Although he seeks an order from the trial court “correct[ing]” his 22 sentence, the trial court evidently has already done that. See Dkt. No. 1 at 30. 23 Moreover, he does not allege that the resulting sentence is illegal or 24 unconstitutional. Indeed, the only error that he identifies is the trial court’s 25 alleged failure to ensure that an abstract of judgment was entered reflecting 26 the amendment to his sentence that the trial court made on March 3, 2021. 27 See Dkt. No. 1 at 5, 9. This claim is not cognizable because, in California, the 28 1 judgment of conviction is the “oral pronouncement” at sentencing. People v. 2 Mesa, 14 Cal. 3d 466, 472 (1975). “The ‘abstract of judgment’ is the clerk’s 3 official recitation of the oral judgment of conviction, which must be provided 4 to the state prison official charged with executing the judgment.” Gonzalez, 5 873 F.3d at 770 (citing Cal. Penal Code § 1213(a)). But the “abstract of 6 judgment is not the judgment of conviction.” People v. Mitchell, 26 Cal. 4th 7 181, 185 (2001). Thus, Petitioner’s claim does not challenge his judgment; 8 rather, it concerns the ministerial task of entering the abstract of judgment. 9 Petitioner alleges no facts to show how the alleged failure to enter the 10 abstract of judgment establishes a due process violation. 11 4. The Petition’s Second Ground for Relief Appears to Be Unexhausted 12 13 Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a 14 petitioner has exhausted the remedies available in state court. Exhaustion 15 requires that the petitioner’s contentions were fairly presented to the state 16 courts, Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011), and disposed of 17 on the merits by the highest court of the state, Greene v. Lambert, 288 F.3d 18 1081, 1086 (9th Cir. 2002). As a matter of comity, a federal court will not 19 entertain a habeas petition unless the petitioner has exhausted the available 20 state judicial remedies on every ground presented in it. See Rose v. Lundy, 21 455 U.S. 509, 518-19 (1982). 22 Here, the Petition’s second ground for relief concerning the failure to 23 enter an abstract of judgment appears to be unexhausted. Petitioner did not 24 allege it in the habeas petition that he filed in the superior court. See Dkt. 25 No. 1 at 3-4. And a review of the California Appellate Courts website 26 indicates that he did not allege it in any of the appeals or habeas petitions he 27 filed in the California Court of Appeal or the California Supreme Court. See 28 Cal. App. Cts. Case Info., http://appellatecases.courtinfo.ca.gov/ (search for 1 “Jerome” with “Eugene” and “Kelly”) (last visited Feb. 24, 2026) (reflecting 2 that Petitioner’s appeals and habeas petitions asserted only claims concerning 3 alleged CRJA violation as well as one petition seeking resentencing under 4 Cal. Penal Code § 1172.1 and Assemb. Bill No. 600). 5 Accordingly, the claim appears to be unexhausted. 6 B. Petitioner’s Declaration In Support of Request to Proceed In Forma Pauperis 7 8 On December 15, 2025, Petitioner filed a Declaration in Support of 9 Request to Proceed In Forma Pauperis. See Dkt. No. 2. However, he did not 10 sign or complete the entire form, instead submitting only one page of the two- 11 page form. See id. As a result, the Court cannot determine whether granting 12 Petitioner’s request is warranted. 13 Accordingly, Petitioner is ORDERED to submit a fully completed form 14 or pay the appropriate filing fee. The Clerk is directed to provide Petitioner 15 with the correct form along with this Order. 16 III. Conclusion 17 For the foregoing reasons, the Court ORDERS Petitioner to show cause 18 by no later than March 18, 2026, as to why the Petition should not be 19 dismissed because it is untimely, alleges a claim that is not cognizable on 20 federal habeas review, and is partially unexhausted. 21 As to whether the entire Petition is timely, if Petitioner contends that 22 he is entitled to tolling of any kind or a later start date for the limitation 23 period, he must allege specific facts to support those contentions and provide 24 any reasonably available supporting documentation. If he maintains that he 25 is actually innocent, he must allege additional specific facts beyond those in 26 the Petition to support that contention and provide any reasonably available 27 supporting documentation. 28 1 As to the Petition’s second ground for relief, Petitioner must explain 2 || how the claim is cognizable and when and how he exhausted it in state court. 3 || If he contends that the Petition’s second ground for relief is cognizable but 4 || unexhausted, he may file a formal stay-and-abey motion under Rhines v. 5 || Weber, 544 U.S. 269 (2005), if he believes he can make the required 6 || showings.® 7 The Court also orders Petitioner, by no later than March 18, 2026, to 8 || either submit a fully completed and signed Declaration in Support of Request 9 || to Proceed In Forma Pauperis or pay the appropriate filing fee of $5.00. 10 Petitioner is admonished that the Court will construe his failure to 11 || comply with this Order by March 18, 2026, as a concession on his part that 12 || the Petition should be dismissed as untimely or for failure to pay the filing fee 13 || or request to proceed in forma pauperis. In that event, the Court will 14 || recommend that the Petition be dismissed, either with prejudice as untimely 15 || or without prejudice for failure to pay the filing fee or request to proceed in 16 || forma pauperis. 17 IT IS SO ORDERED. 18 | DATED: February 25, 2026 . 19 Palas Mrnakoe_ 20 □□□□□□□□□□□□□□□□□□□□□□□□□ 2] UNITED STATES MAGISTRATE JUDGE 22 23 5 Under Fhines, Petitioner can obtain a stay while he exhausts his state remedies if 25 || he shows the following: (1) there is good cause for his failure to earlier exhaust the claim in state court; (2) the unexhausted claim is not “plainly meritless”; and (3) he 26 || has not engaged in “abusive litigation tactics or intentional delay.” 544 U.S. at 277- 78. Preliminarily, it appears Petitioner would be unable to satisfy the first and 27 second elements of Rhines, although the Court makes no definitive finding on that 2g || issue at this point.

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