8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 TEDD E. JOJOLA, Case No. 5:19-CV-01389-DMG-ADS
11 Plaintiff,
12 v. ORDER TO SHOW CAUSE
13 RIVERSIDE SUPERIOR COURT,
14 Defendant. 15 I. INTRODUCTION 16 Pending before the Court is a Petition for Writ of Habeas Corpus by a Person in 17 State Custody filed by petitioner Tedd E. Jojola, a California state prisoner. 18 II. SCREENING REQUIREMENT 19 Under Rule 4 of the Rules Governing Section 2254 Cases, this court is required to 20 conduct a preliminary review of all petitions for writ of habeas corpus filed by state 21 prisoners. Pursuant to Rule 4, this court must summarily dismiss a petition if it “plainly 22 appears from the petition and any attached exhibits that the petitioner is not entitled to 23 relief in the district court.” 24 1 The Court’s review of the Petition, the Court’s own records, and public records 2 reveals that Petitioner has used the wrong form, filed a Petition that is incomplete, and 3 which fails to meet the exhaustion requirement.1 For the reasons discussed below, 4 Petitioner is ORDERED TO SHOW CAUSE in writing within twenty-eight (28) 5 days of the service of this Order why the instant Petition should not be dismissed.
6 II. THE PETITIONER DOES NOT PROVIDE SUFFICIENT INFORMATION 7 A. Wrong Form 8 Petitioner submitted the Petition on a form that has not been approved by this 9 Court. “A petition for writ of habeas corpus or a motion filed pursuant to 28 U.S.C. 10 § 2255 shall be submitted on the forms approved and supplied by the Court.” Central 11 District of California Local Rule 83-16.1. The Central District of California requires that 12 habeas petitions be submitted on Form CV-69. This Court adheres to the practice of 13 asking a petitioner who has not used the local form to submit his petition on the local 14 form. See Rules Governing § 2254 Cases, Rule 2(d), 28 U.S.C. foll. § 2254, Advisory 15 Committee Notes – 2004 Amendment (acknowledging this practice with respect to the 16 standard “national” form). Therefore, the Court directs the Clerk of the Court to serve
17 with this Order Central District forms CV-69 and CV-76A. 18 19 20
1 Where necessary, the Court takes judicial notice of the public records. See Fed. R. 21 Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose 22 accuracy cannot reasonably be questioned.”); United States v. Wilson, 631 F.2d 118, 11 (9th Cir. 1980) (“[A] court may take judicial notice of its own records in other cases, as 23 well as the records of an inferior court in other cases.”); Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (holding that a court may take judicial notice of 24 undisputed matters of public record). 1 B. Insufficient Information 2 Petitioner has not completed the Petition with sufficient essential information for 3 the Court to proceed. A petition for habeas corpus must state the facts supporting each 4 ground for relief. See Rules Governing § 2254 Cases, Rule 2(c)(1)–(2), 28 U.S.C. foll. 5 § 2254 (“The petition must (1) specify all the grounds for relief available to the
6 petitioner; (2) state the facts supporting each ground . . . .”). While incomplete 7 information is not generally outcome determinative of a habeas action, in this instance, 8 providing important details may provide the Court with the necessary information to 9 allow the case to proceed to service on the respondent. For example, without the 10 Petitioner’s date of sentence, the Court cannot determine whether the Petition is timely. 11 Further, without Petitioner’s criminal case number, the Court cannot fully evaluate 12 whether Petitioner has exhausted all available state judicial remedies. Therefore, 13 Petitioner has used the wrong form and has failed to provide sufficient information and, 14 until Petitioner has done so, this Court cannot entertain his Petition. 15 III. THE PETITION APPEARS TO BE WHOLLY UNEXHAUSTED 16 There is no question that the exhaustion of state court remedies is a prerequisite
17 to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). 18 “Under the exhaustion requirement, a habeas petitioner challenging a state conviction 19 must first attempt to present his claim in state court.” Harrington v. Richter, 562 20 U.S. 86, 103 (2011); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[T]he 21 exhaustion doctrine is designed to give the state courts a full and fair opportunity to 22 resolve federal constitutional claims before those claims are presented to the federal 23 courts”). The Court may raise the failure to exhaust issue sua sponte and may 24 summarily dismiss on these grounds. See Aiken v. Spalding, 841 F.2d 881, 883 (9th 1 Cir. 1988); see also Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (noting that 2 a district court can dismiss a habeas corpus petition for failure to exhaust); Stone v. City 3 and County of San Francisco, 968 F.2d 850, 855–56 (9th Cir. 1992) (“In habeas corpus 4 cases . . . federal courts may consider sua sponte whether the defendant has exhausted 5 state remedies . . . .”).
6 As a matter of comity, a federal court will not entertain a habeas petition unless 7 the petitioner has exhausted the available state judicial remedies on every ground for 8 relief presented in the petition. See Rose v. Lundy, 455 U.S. 509, 518–22 (1982). A 9 petitioner has the burden of demonstrating that he has exhausted available state 10 remedies. See e.g., Cartwright, 650 F.2d at 1104. To satisfy the exhaustion requirement, 11 a habeas petitioner must “fairly present federal claims to the state courts in order to give 12 the State the opportunity to pass upon and correct alleged violations of its petitioners’ 13 federal rights.” Duncan v. Henry, 513 U.S. 364, 365–66 (1995); see also Ybarra v. 14 McDaniel, 656 F.3d 984, 991 (9th Cir. 2011) (explaining that a “claim has been 15 exhausted if the state courts have in fact ruled on its merits”). 16 Exhaustion requires that a petitioner’s claims be fairly presented to the highest
17 court in the state court system, even if that court’s review is discretionary. See 18 O’Sullivan, 526 U.S. at 845–47 (1999) (holding that petitioners’ right to raise claims 19 through a petition for discretionary review in the state’s highest court satisfies 28 U.S.C. 20 § 2254(c) requirements); Baldwin v. Reese, 541 U.S. 27, 29 (2004) (explaining that a 21 state prisoner must fairly present his claim to a state supreme court with powers of 22 discretionary review to alert “that court to the federal nature of the claim”).
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 TEDD E. JOJOLA, Case No. 5:19-CV-01389-DMG-ADS
11 Plaintiff,
12 v. ORDER TO SHOW CAUSE
13 RIVERSIDE SUPERIOR COURT,
14 Defendant. 15 I. INTRODUCTION 16 Pending before the Court is a Petition for Writ of Habeas Corpus by a Person in 17 State Custody filed by petitioner Tedd E. Jojola, a California state prisoner. 18 II. SCREENING REQUIREMENT 19 Under Rule 4 of the Rules Governing Section 2254 Cases, this court is required to 20 conduct a preliminary review of all petitions for writ of habeas corpus filed by state 21 prisoners. Pursuant to Rule 4, this court must summarily dismiss a petition if it “plainly 22 appears from the petition and any attached exhibits that the petitioner is not entitled to 23 relief in the district court.” 24 1 The Court’s review of the Petition, the Court’s own records, and public records 2 reveals that Petitioner has used the wrong form, filed a Petition that is incomplete, and 3 which fails to meet the exhaustion requirement.1 For the reasons discussed below, 4 Petitioner is ORDERED TO SHOW CAUSE in writing within twenty-eight (28) 5 days of the service of this Order why the instant Petition should not be dismissed.
6 II. THE PETITIONER DOES NOT PROVIDE SUFFICIENT INFORMATION 7 A. Wrong Form 8 Petitioner submitted the Petition on a form that has not been approved by this 9 Court. “A petition for writ of habeas corpus or a motion filed pursuant to 28 U.S.C. 10 § 2255 shall be submitted on the forms approved and supplied by the Court.” Central 11 District of California Local Rule 83-16.1. The Central District of California requires that 12 habeas petitions be submitted on Form CV-69. This Court adheres to the practice of 13 asking a petitioner who has not used the local form to submit his petition on the local 14 form. See Rules Governing § 2254 Cases, Rule 2(d), 28 U.S.C. foll. § 2254, Advisory 15 Committee Notes – 2004 Amendment (acknowledging this practice with respect to the 16 standard “national” form). Therefore, the Court directs the Clerk of the Court to serve
17 with this Order Central District forms CV-69 and CV-76A. 18 19 20
1 Where necessary, the Court takes judicial notice of the public records. See Fed. R. 21 Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose 22 accuracy cannot reasonably be questioned.”); United States v. Wilson, 631 F.2d 118, 11 (9th Cir. 1980) (“[A] court may take judicial notice of its own records in other cases, as 23 well as the records of an inferior court in other cases.”); Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (holding that a court may take judicial notice of 24 undisputed matters of public record). 1 B. Insufficient Information 2 Petitioner has not completed the Petition with sufficient essential information for 3 the Court to proceed. A petition for habeas corpus must state the facts supporting each 4 ground for relief. See Rules Governing § 2254 Cases, Rule 2(c)(1)–(2), 28 U.S.C. foll. 5 § 2254 (“The petition must (1) specify all the grounds for relief available to the
6 petitioner; (2) state the facts supporting each ground . . . .”). While incomplete 7 information is not generally outcome determinative of a habeas action, in this instance, 8 providing important details may provide the Court with the necessary information to 9 allow the case to proceed to service on the respondent. For example, without the 10 Petitioner’s date of sentence, the Court cannot determine whether the Petition is timely. 11 Further, without Petitioner’s criminal case number, the Court cannot fully evaluate 12 whether Petitioner has exhausted all available state judicial remedies. Therefore, 13 Petitioner has used the wrong form and has failed to provide sufficient information and, 14 until Petitioner has done so, this Court cannot entertain his Petition. 15 III. THE PETITION APPEARS TO BE WHOLLY UNEXHAUSTED 16 There is no question that the exhaustion of state court remedies is a prerequisite
17 to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). 18 “Under the exhaustion requirement, a habeas petitioner challenging a state conviction 19 must first attempt to present his claim in state court.” Harrington v. Richter, 562 20 U.S. 86, 103 (2011); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[T]he 21 exhaustion doctrine is designed to give the state courts a full and fair opportunity to 22 resolve federal constitutional claims before those claims are presented to the federal 23 courts”). The Court may raise the failure to exhaust issue sua sponte and may 24 summarily dismiss on these grounds. See Aiken v. Spalding, 841 F.2d 881, 883 (9th 1 Cir. 1988); see also Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (noting that 2 a district court can dismiss a habeas corpus petition for failure to exhaust); Stone v. City 3 and County of San Francisco, 968 F.2d 850, 855–56 (9th Cir. 1992) (“In habeas corpus 4 cases . . . federal courts may consider sua sponte whether the defendant has exhausted 5 state remedies . . . .”).
6 As a matter of comity, a federal court will not entertain a habeas petition unless 7 the petitioner has exhausted the available state judicial remedies on every ground for 8 relief presented in the petition. See Rose v. Lundy, 455 U.S. 509, 518–22 (1982). A 9 petitioner has the burden of demonstrating that he has exhausted available state 10 remedies. See e.g., Cartwright, 650 F.2d at 1104. To satisfy the exhaustion requirement, 11 a habeas petitioner must “fairly present federal claims to the state courts in order to give 12 the State the opportunity to pass upon and correct alleged violations of its petitioners’ 13 federal rights.” Duncan v. Henry, 513 U.S. 364, 365–66 (1995); see also Ybarra v. 14 McDaniel, 656 F.3d 984, 991 (9th Cir. 2011) (explaining that a “claim has been 15 exhausted if the state courts have in fact ruled on its merits”). 16 Exhaustion requires that a petitioner’s claims be fairly presented to the highest
17 court in the state court system, even if that court’s review is discretionary. See 18 O’Sullivan, 526 U.S. at 845–47 (1999) (holding that petitioners’ right to raise claims 19 through a petition for discretionary review in the state’s highest court satisfies 28 U.S.C. 20 § 2254(c) requirements); Baldwin v. Reese, 541 U.S. 27, 29 (2004) (explaining that a 21 state prisoner must fairly present his claim to a state supreme court with powers of 22 discretionary review to alert “that court to the federal nature of the claim”). For a 23 petitioner in California state custody, this generally means the petitioner must have 24 fairly presented his claims to the California Supreme Court. See O’Sullivan, 526 U.S. 1 at 845 (interpreting 28 U.S.C. § 2254(c)); Gatlin v. Madding, 189 F.3d 882, 888 (9th 2 Cir. 1999) (applying O’Sullivan to California). 3 Review of the Petition reflects that Petitioner did not fully exhaust his claims in 4 state court. First, the Petition states that Petitioner did not appeal the judgment of 5 conviction. [Dkt. No. 1, p. 5]. Second, a review of the California Appellate Courts Case
6 Information website did not reveal any records of a prior state appeal or state habeas 7 petition filed by Petitioner in either the California Court of Appeal or California 8 Supreme Court. See California Appellate Courts Case Information 4th Appellate 9 District, http://appellatecases.courtinfo.ca.gov. Therefore, it appears from the face of 10 the Petition that Petitioner has failed to meet his burden of demonstrating that he has 11 fully exhausted his available state remedies. 12 IV. PETITIONER IS ORDERED TO SHOW CAUSE 13 Petitioner is ORDERED TO SHOW CAUSE in writing within twenty-eight 14 (28) days of the service of this Order why the Court should not dismiss this action. 15 In his response to this Order, Petitioner must file a Petition using the correct 16 (Form CV-69), must provide complete information regarding his case, and must explain
17 whether his claim(s) have been exhausted by full and fair presentation to the California 18 Court of Appeal and California Supreme Court. In the alternative, Petitioner may 19 request a voluntary dismissal of this action without prejudice pursuant to Federal Rule 20 of Civil Procedure 41(a). 21 22 23 24 1 Petitioner is expressly warned that his failure to timely respond to 2 this Order may result in the Petition being dismissed for the reasons stated 3 above, for failure to prosecute and/or failure to obey Court orders. 4 5
6 Dated: September 20, 2019 ______/s/ Autumn D. Spaeth___________ THE HONORABLE AUTUMN D. SPAETH 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24