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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 DONALD E. BOOKER, ) Case No. 2:22-cv-06053-SPG-JC 11 ) Petitioner, ) 12 ) ORDER TO SHOW CAUSE WHY THE v. ) PETITION FOR WRIT OF HABEAS 13 ) CORPUS AND THIS ACTION SHOULD

ATTORNEY JOEL CHRISTIAN ) NOT BE DISMISSED

14 KOURY, ) ) 15 Respondent. ) ___________________________ ) 16

I. SUMMARY

17 On August 22, 2022, petitioner Donald E. Booker, a state prisoner who is 18 proceeding pro se and has since been granted leave to proceed in forma pauperis, 19 filed a Petition for Writ of Habeas Corpus by a Person in State Custody with 20 attachments (“Petition”) pursuant to 28 U.S.C. § 2254. (Docket Nos. 1, 5). The 21 Petition is quite difficult to understand but, construed liberally, appears to raise 22 claims of ineffective assistance of counsel and to challenge petitioner’s conviction 23 and/or sentence in Los Angeles County Superior Court Case No. GA099455-01 24 (“State Case”), following resentencing proceedings. See Petition at 2-5, 35-39.1 25 26 27 1Because the pages of the Petition are not consecutively numbered, the Court refers to the 28 Page ID numbers that appear on the electronic version of the Petition that is on the Court’s docket (CM/ECF). Case 2:22-cv-06053-SPG-JC Document9 Filed 10/31/22 Page2of8 Page ID #:60

1 Petitioner purports to name as respondent Joel Christian Koury, the appointed 2 |\defense counsel who represented petitioner in the State Case. (Petition at 1, 13-33, 3 37-39). Petitioner asserts that he has not had law library or “materials” access, and 4 ||the form for the Petition he filed is the only form he has to seek relief. (Petition at 5 7). Petitioner has not specified what relief, if any, he seeks from this Court. 6 As the Petition is deficient in multiple respects, including those detailed 7 |lbelow, petitioner is Ordered to Show Cause why the Petition and this action should 8 |Inot be dismissed without prejudice.

PROCEDURAL HISTORY AND BACKGROUND CONCERNING

10 THE STATE CASE’ 11 On October 18, 2017, a jury in the State Case convicted petitioner on charges 12 lof assault with a deadly weapon, attempted murder, and mayhem, and found true 13 jallegations that petitioner personally inflicted great bodily injury. See Petition at 14 115; People v. Booker, 2019 WL 2067265, at *1 (Cal. Ct. App. May 10, 2019) (order 15 summarizing history). The trial court sentenced petitioner to 45 years to life in state 16 |lprison. (Id.). 17 Petitioner appealed, raising multiple claims of trial court error. On May 10, 18 2019, in Case No. B286842, the California Court of Appeal, Second Appellate 19 District (“Court of Appeal”) conditionally reversed the judgment and remanded the 20 |icase for further proceedings. See People v. Booker, 2019 WL 2067265, at *15 21 |(order conditionally reversing judgment and remanding to the trial court to consider 22 |whether to exercise discretion to strike sentence enhancements under Cal. Penal 23 | 24 *Except as otherwise noted, the procedural history set forth herein is derived from the Petition, petitioner’s pending civil rights complaint filed in this Court in Booker v. Law Office of 25 || Joel C. Koury, et al., Case No. 2:22-cv-05981-SPG-JC, and the dockets of the Los Angeles County Superior Court (available online at www.lacourt.org), and the California Court 26 of Appeal and California Supreme Court (available online at https://appellatecases.courtinfo. 27 || ca.gov), of which Court takes judicial notice. See Fed. R. Evid. 201; Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (court may take judicial notice of undisputed 28 || matters of public record including documents on file in federal or state courts).

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1 Code § 667(a), and to conduct a diversion eligibility hearing under Cal. Penal Code 2 § 1001.36)). The People petitioned the California Supreme Court for review in 3 Case No. S256078, which was granted and on July 31, 2019. On July 29, 2020, the 4 California Supreme Court dismissed the matter and on August 19, 2020, the Court 5 of Appeal issued a remittitur. 6 On remand, the trial court held a hearing on October 14, 2021, at which Mr. 7 Koury represented petitioner. (Petition at 23-33). The trial court set a mental health 8 diversion and resentencing hearing for November 15, 2021. (Petition at 31-33). 9 While there are several notations in the State Case docket re “further proceedings” 10 since the November 15, 2021 hearing date, there is no detail about what transpired 11 in those proceedings, and no information about whether petitioner was resentenced 12 or the outcome of any mental health diversion hearing. 13 On July 21, 2022, Mr. Koury filed a Notice of Appeal regarding an order or 14 judgment dated April 14, 2022 in the State Case (the order is not a part of the 15 record). (Petition at 11). The last entry on the State Case docket is for an 16 unspecified “judicial action” on September 14, 2022. Consistent with the notice, 17 petitioner has pending an appeal before the Court of Appeal: People v. Booker, 18 Case No. B322598. On October 14, 2022, a new/different attorney was appointed 19 to represent petitioner on appeal. Petitioner’s opening brief is due on November 14, 20 2022. It does not appear from the available state court dockets that petitioner has 21 anything else pending in state court. 22 III. DISCUSSION 23 Rule 4 of the Rules Governing Section 2254 Cases in the United States 24 District Courts allows a district court to dismiss a petition if it “plainly appears from 25 the petition and any attached exhibits that the petitioner is not entitled to relief in 26 the district court. . . .” Rule 4 of the Rules Governing Section 2254 Cases. Based 27 upon the Petition and the California state court records as to which the Court has 28 /// 3 Case 2:22-cv-06053-SPG-JC Document9 Filed 10/31/22 Page 4of8 Page ID #:62

1 |[taken judicial notice, and for the reasons discussed below, the Court orders 2 |petitioner to show cause why the Petition/claims therein should not be dismissed. 3 A. The Petition Fails to Name a Proper Respondent 4 A petitioner seeking federal habeas relief must name the proper respondent. 5 ||Federal courts lack personal jurisdiction when a habeas petition fails to name a 6 [proper respondent. See Ortiz -Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) 7 |\(citations omitted). A petitioner seeking habeas corpus relief under 8 128 U.S.C. § 2254 must name the state officer having custody of him as the 9 respondent to the petition. See Rule 2(a) of the Rules Governing § 2254 Cases in 10 |the United States District Courts (“Habeas Rules”); Stanley v. California Supreme 11 Court, 21 F.3d 359, 360 (9th Cir. 1994). The appropriate respondent is petitioner’s 12 |tmmediate custodian (i.e., the prison warden at the facility where he is currently 13 housed). See Rumsfeld v. Padilla, 542 U.S. 426, 439 (2004); see also 28 U.S.C. 14 2242; Rule 2(a) of the Habeas Rules. Since petitioner has improperly named as 15 respondent his appointed counsel for the State Case, dismissal of his habeas petition 16 |for lack of jurisdiction is required absent an amendment to name a proper 17 |respondent. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 18 1326, 1326 (9th Cir.), cert. denied, 398 U.S. 914 (1970). 19 B. ‘The Petition Appears to Be Unexhausted 20 The Petition does not indicate whether petitioner has exhausted his 21 |lineffective assistance of counsel claims by filing them first with the state courts. 22 (Petition at 4-5). As a matter of comity, a federal court will not entertain a habeas 23 |lcorpus petition unless the petitioner has exhausted the available state judicial 24 |iremedies on every ground presented in the petition. See Rose v. Lundy, 455 U.S. 25 509, 518-22 (1982); Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005) 26 (“We may review the merits of Petitioner’s habeas petition only if he exhausted 27 |state court remedies.”) (citations omitted); Park v. California, 202 F.3d 1146, 1150 28 (9th Cir.), cert. denied, 531 U.S. 918 (2000); see also 28 U.S.C. § 2254(b)(1 (A).

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1 |“[T]he exhaustion doctrine is designed to give the state courts a full and fair 2 |lopportunity to resolve federal constitutional claims before those claims are 3 |lpresented to the federal courts... .” O’Sullivan v. Boerckel, 526 U.S. 838, 845 4 (1999); see also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (to give the State the 5 |lchance to pass upon and resolve violations of his federal rights, a state prisoner 6 |lmust exhaust his available state remedies before seeking federal habeas relief). 7 Exhaustion requires that a petitioner’s contentions be fairly presented to the 8 ||state courts, and be disposed of on the merits by the highest court of the state. See 9 ||Baldwin v. Reese, 541 U.S. at 29; Davis v. Silva, 511 F.3d 1005, 1008 (9th Cir. 10 2008); James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied, 513 U.S. 935 (1994). 11 ||A claim has not been fairly presented unless the petitioner has described in the state 12 |lcourt proceedings both the operative facts and the federal legal theory on which his 13 |claim is based. Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Anderson v. 14 |Harless, 459 U.S. 4, 6 (1982); Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 15 1999). 16 Generally, a claim has not been fairly presented if it has been raised “in a 17 procedural context in which its merits will not be considered.” Castille v. Peoples, 18 489 U.S. 346, 351 (1989). If, however, it is clear that a claim is procedurally barred 19 junder state law, then no state remedies remain available and the requisite 20 |lexhaustion exists. See id. at 351-52; Johnson v. Zenon, 88 F.3d 828, 831 (9th Cir. 21 11996). 22 A federal court may raise a habeas petitioner’s failure to exhaust state 23 |lremedies sua sponte. See Stone v. City and County of San Francisco, 968 F.2d 850, 24 855-56 (9th Cir. 1992), cert. denied, 506 U.S. 1081 (1993). Petitioner has the 25 |burden of demonstrating he has exhausted available state remedies. See, e.g., 26 Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972) (per curiam); Rollins v. 27 |Superior Court, 706 F. Supp. 2d 1008, 1011 (C.D. Cal. 2010). 28 W///

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1 Here, it does not appear on the available record that petitioner raised an 2 |lineffective assistance of counsel claim on direct appeal. See People v. Booker, 3 12019 WL 2067265, at *1. Petitioner has pending a second appeal with the Court of 4 ||Appeal which may or may not assert ineffective assistance of counsel claims, but 5 |leven assuming he has raised his instant claims in the Court of Appeal, this would 6 |still be insufficient for exhaustion because the claims must be presented to and 7 |resolved by the California Supreme Court. Thus, it appears that the Petition is 8 |lunexhausted and therefore subject to dismissal. See Rasberry v. Garcia, 448 F.3d 9 11150, 1154 (9th Cir. 2006) (“Once a district court determines that a habeas petition 10 |lcontains only unexhausted claims, it need not inquire further as to the petitioner’s 11 |intentions. Instead, it may simply dismiss the habeas petition for failure to 12 |lexhaust.’’) (citation omitted). 13 The Court observes that while the exhaustion requirement nonetheless may 14 |lbe satisfied 1f petitioner’s claims are clearly procedurally barred under state law, see 15 Castille v. Peoples, 489 U.S. at 351-52; Johnson v. Zenon, 88 F.3d at 831, in this 16 |Icase, particularly given the pendency of petitioner’s appeal in the Court of Appeal, 17 is not at all “clear” that the California Supreme Court would deem petitioner’s 18 |lclaims procedurally barred under state law if he were to raise them on a direct 19 appeal or in a habeas petition in the California Supreme Court. See In re Harris, 20 5 Cal. 4th 813, 825 (1993) (“[H]abeas corpus has become a proper remedy in this 21 |/state to collaterally attack a judgment of conviction which has been obtained in 22 |violation of fundamental constitutional rights.’’) (citations omitted); People v. 23 |Sorenson, 111 Cal. App. 2d 404, 405 (1952) (claims that fundamental constitutional 24 |irights have been violated may be raised by state habeas petition). However, this 25 |\Court expresses no opinion regarding whether consideration of petitioner’s claims 26 |might be foreclosed by the principles discussed in In Re Clark, 5 Cal. 4th 750, 27 763-87 (1993). The California Supreme Court should evaluate the matter in the 28 |first instance. Even if an applicable state procedural bar exists, the California

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1 Supreme Court nevertheless might choose to reach the merits of petitioner’s claims. 2 See, e.g., Park, 202 F.3d at 1151-52. 3 IV. CONCLUSION AND ORDER 4 For the foregoing reasons, within twenty (20) days of the date of this Order, 5 petitioner is ORDERED TO SHOW CAUSE, in writing, why this action should not 6 be dismissed on the foregoing bases. 7 If petitioner contends that he has, in fact, presented his claims to the 8 California Supreme Court and that such court has ruled thereon, his response to this 9 Order to Show Cause shall indicate how and when petitioner raised his claims with 10 the California Supreme Court, shall include the date of the California Supreme 11 Court’s decision regarding his claims, and shall attach a copy of such decision, if it 12 is available. 13 Instead of filing a response to the instant Order to Show Cause, petitioner 14 may request a voluntary dismissal of this action pursuant to Federal Rule of Civil 15 Procedure 41(a). If he elects to proceed in that manner, he may sign and return the 16 attached Notice of Dismissal. However, petitioner is advised that any dismissed 17 claims may later be subject to dismissal with prejudice as time-barred under 18 28 U.S.C. § 2244(d)(1). 19 Petitioner is cautioned that the failure timely to respond to this Order to 20 Show Cause and/or to show good cause may result in the dismissal of this 21 action based upon the deficiencies in the Petition identified above, petitioner’s 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 7 Case 2:22-cv-06053-SPG-JC Document 9 Filed 10/31/22 Page 8 of 8 Page ID #:66

1 failure to comply with the Court’s order, and/or petitioner’s failure to 2 prosecute. 3 IT IS SO ORDERED.3 4 DATED: October 31, 2022 5 ______________/s/__________________ 6 Honorable Jacqueline Chooljian

UNITED STATES MAGISTRATE JUDGE

7 8 Attachment 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 3The Magistrate Judge's instant Order to Show Cause constitutes a non-dispositive ruling 25 on a pretrial matter. To the extent a party disagrees with such non-dispositive ruling, such party may file a motion for review by the assigned District Judge within fourteen (14) days. See Local 26 Rule 72-2.1. To the extent a party believes the Order to Show Cause to be dispositive, rather 27 than non-dispositive, such party has the right to object to this Court's determination that it is non-dispositive within fourteen (14) days. A party will be foreclosed from challenging the Order 28 to Show Cause if such party does not seek review thereof, or object thereto. 8