Case 5:22-cv-01406-JAK-KES Document 5 Filed 08/16/22 Page 1 of 6 Page ID #:16

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 BROQUE ANTHONY Case No. 5:22-cv-1406-JAK-KES

ANDERSON,

12 Petitioner, ORDER TO SHOW CAUSE WHY 13 v. PETITION SHOULD NOT BE 14 DISMISSED AS UNEXHAUSTED

SAN BERNARNDINO COUNTY

15 SHERIFF’S DEPARTMENT,

16 Respondent.

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18 I.

19 BACKGROUND

20 On July 29, 2022, Petitioner Broque Anthony Anderson (“Petitioner”) 21 constructively filed a Petition for Writ of Habeas Corpus by a Person in State 22 Custody pursuant to 28 U.S.C. § 2254. (Dkt. 1 [“Petition”]) Petitioner challenges 23 his March 2022 convictions in San Bernardino County Superior Court case nos. 24 FWV21003848 and FWV21003849 for violating California Penal Code section 459 25 (burglary). 26 Petitioner is pursuing a direct appeal in case no. E079027 in which he is 27 represented by counsel. Per the online records of the California Court of Appeal, 28 4th Appellate District Division 2, that appeal remains pending. See 1 Case 5:22-cv-01406-JAK-KES Document 5 Filed 08/16/22 Page 2 of 6 Page ID #:17

1 https://appellatecases.courtinfo.ca.gov (showing record on appeal filed on August 2 10, 2022). 3 The Petition states six claims for federal habeas relief. Claim 2 alleges 4 ineffective assistance of trial counsel. The remaining five claims all allege some 5 variation of a due process claim that the evidence presented at trial was insufficient 6 to prove the elements of burglary beyond a reasonable doubt. (Dkt. 1.) 7 II. 8 LEGAL STANDARDS 9 A. The Exhaustion Requirement. 10 All claims in a federal habeas petition must be “exhausted” before a federal 11 court may grant the petition. 28 U.S.C. § 2254(b)(1); Rose v. Lundy, 455 U.S. 509, 12 522 (1982). To exhaust a claim, the petitioner must “fairly present” the claim to the 13 state courts, to give the State the opportunity to pass upon and correct alleged 14 violations of the petitioner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 15 (1995). To be properly exhausted, the claim must be “fairly presented” to the 16 highest court in a state court system, even if that court’s review is discretionary. 17 O’Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999); James v. Giles, 221 F.3d 18 1074, 1077, n.3 (9th Cir. 2000). For a petitioner in California state custody, this 19 generally means that the petitioner must have presented his claims to the California 20 Supreme Court. Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999); see also 21 Carey v. Saffold, 536 U.S. 214, 221 (2002) (noting that, although “California’s 22 ‘original writ’ system” does not “technically speaking” require a habeas petitioner 23 to begin with the Superior Court and then proceed to the California Court of Appeal 24 and California Supreme Court, “California’s habeas rules lead a prisoner ordinarily 25 to file a petition in a lower court first ... and later seek appellate review in a higher 26 court....”). 27 For a claim to have been “fairly presented” to the state courts, the claim 28 “must include a reference to a specific federal constitutional guarantee, as well as a 2 Case 5:22-cv-01406-JAK-KES Document 5 Filed 08/16/22 Page 3 of 6 Page ID #:18

1 statement of the facts that entitle the petitioner to relief.” Gray v. Netherland, 518 2 U.S. 152, 162-63 (1996). The claim should alert the state court to the alleged 3 federal basis for the claim “by citing in conjunction with the claim the federal 4 source of law on which he relies or a case deciding such a claim on federal grounds, 5 or by simply labeling the claim ‘federal.’” Baldwin v. Reese, 541 U.S. 27, 32 6 (2004). “[O]rdinarily a state prisoner does not ‘fairly present’ a claim to a state 7 court if that court must read beyond a petition or a brief (or a similar document) that 8 does not alert it to the presence of a federal claim in order to find material, such as a 9 lower court opinion in the case, that does so.” Id. 10 A petitioner has the burden of demonstrating that he has exhausted his claims 11 in state court. See, e.g., Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). 12 B. Grounds for Requesting a Stay. 13 Under the Anti-Terrorism and Effective Death Penalty Act of 1996 14 (“AEDPA”), all federal habeas petitions are subject to a one-year statute of 15 limitations, and claims not exhausted and presented to a federal court within the 16 one-year period cannot be raised later. 28 U.S.C. § 2244(d). Under Rhines v. 17 Weber, 544 U.S. 269 (2005), a district court has discretion to stay a § 2254 petition 18 to allow a petitioner to exhaust his claims in state court without running afoul of 19 AEDPA’s one-year statute of limitations period. Id. at 273-75. A district court 20 may stay a petition if: (1) the petitioner has good cause for his failure to exhaust his 21 claims; (2) the unexhausted claims are potentially meritorious; and (3) there is no 22 indication that the petitioner intentionally engaged in dilatory tactics. Id. at 278. 23 III. 24 DISCUSSION 25 All six grounds raised in the Petition appear unexhausted, because Petitioner 26 has not yet presented them to the California Supreme Court. Generally, when the 27 direct “appeal of a state criminal conviction is pending, a would be [federal] habeas 28 corpus petitioner must await the outcome of his appeal before his state remedies are 3 Case 5:22-cv-01406-JAK-KES Document 5 Filed 08/16/22 Page 4 of 6 Page ID #:19

1 exhausted,” because “that appeal may result in the reversal of the petitioner’s 2 conviction on some other ground, thereby mooting the federal question.” 3 Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983); see also Henderson v. 4 Johnson, 710 F.3d 872, 874 (9th Cir. 2013) (“Sherwood stands for the proposition 5 that a district court may not adjudicate a federal habeas petition while a petitioner’s 6 direct state appeal is pending.”). 7 The next question is whether this Court should: (a) dismiss the Petition 8 without prejudice to Petitioner filing a new federal petition after he exhausts his 9 claims in state court, or (b) stay these federal proceedings while Petitioner exhausts. 10 As discussed above, Rhines allows federal courts to stay a wholly unexhausted 11 petition under certain circumstances, but only upon a showing of “good cause.” 12 Petitioner has not asked to stay these federal proceedings and it is unclear 13 that he could demonstrate good cause to do so. There does not appear to be any 14 immediate danger that a later-filed § 2254 petition would be time-barred. 15 AEDPA’s one-year statute of limitations will not commence until his criminal 16 convictions become final at the conclusion of his direct appeal. See 28 U.S.C. 17 § 2244(d)(1)(A). Even after that, he may qualify for tolling if he files timely state 18 habeas petitions. See 28 U.S.C. § 2244(d)(2); Aguilar v. Ryan, No. 15-cv-0286, 19 2016 U.S. Dist. LEXIS 159383, 2016 WL 6804334 (D. Ariz. Nov. 17, 2016) 20 (declining to stay § 2254 petition because AEDPA’s one-year limitations period 21 was tolled by the pending post-conviction proceeding in state court), cert. of 22 appealability denied, No. 16-17229, 2017 WL 6048893 (9th Cir. Apr. 14, 2017). 23 IV. 24 CONCLUSION 25 IT IS HEREBY ORDERED that, on or before September 13, 2022, 26 Petitioner is ordered to show cause why the Petition should not be dismissed 27 without prejudice as unexhausted. In response to this Order to Show Cause 28 (“OSC”), Petitioner should do one of the following: 4 Case 5:22-cv-01406-JAK-KES Document5 Filed 08/16/22 Page5of6 Page ID #:20

1 (1) Voluntarily dismiss the Petition without prejudice using the enclosed 2 | form; 3 (2) File a written response to this OSC explaining when/how Petitioner 4 || contends that his claims are exhausted; or 5 (3) File a motion to stay this action under Rhines v. Weber, 544 U.S. 269 6 | (2005) demonstrating “good cause” for a stay, as discussed above. 8 The Clerk’s Office is directed to (1) attach a Notice of Dismissal Form 9 | that Petitioner can use to voluntarily dismiss this action and (2) mail this 10 | Order to Show Cause to Petitioner’s counsel on direct appeal, Mr. Alex Kreit, 325 11 | W. Washington Street, Suite 2 #605, San Diego, CA 92103-1946. While Mr. Kreit 12 | does not represent Petitioner for the purpose of pursuing habeas claims, he may be 13 | able to explain better why a voluntarily dismissal of this Petition now will not 14 | prejudice Petitioner’s ability to seek federal habeas corpus relief later, after he 15 || exhausts his claims in state court. 16 17 | DATED: August 16, 2022 18 . Touma E 00 _ Sboams ©, Sestt)

KAREN E. SCOTT

21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28

Case 5:22-cv-01406-JAK-KES Document5 Filed 08/16/22 Page6Gof6 Page ID #:21

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NUMBER

Petitioner(s), Vv.

NOTICE OF DISMISSAL

PURSUANT TO FEDERAL RULE

Respondent(s). OF CIVIL PROCEDURE 41(a)(1)

PLEASE TAKE NOTICE: (Check one) [1 This action is dismissed by the Petitioner in its entirety. ONLY Ground(s)

is/are dismissed by Petitioner in its/their entirety. L] ONLY Respondent(s)

is/are dismissed.

The dismissal is made pursuant to Federal Rule of Civil Procedure 41(a)(1).

Date Signature of Petitioner

NOTE: F.R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs.

NOTICE OF DISMISSAL PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 41(a)(1)