1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 RICHARD LEE THOMAS, ) No. 5:21-cv-00246-CJC-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE 13 v. ) WHY THE PETITION ) 14 PEOPLE OF THE STATE OF ) SHOULD NOT BE ) DISMISSED

CALIFORNIA, )

15 ) 16 Respondent. ) 17 18 19 I. 20 INTRODUCTION 21 On February 5, 2021, Petitioner Richard Lee Thomas (“Petitioner”) filed 22 a habeas petition pursuant to 28 U.S.C. § 2254, challenging his 2017 23 conviction in Riverside County Superior Court. Dkt. 1 (“Petition” or “Pet.”). 24 The Court has reviewed the Petition consistent with its authority under Rule 4 25 of the Rules Governing Section 2254 Cases in the United States District Courts 26 (“Habeas Rules”) and finds that the Petition suffers from at least four defects. 27 The Court therefore orders Petitioner to show cause why this action should not 28 be dismissed. 1 II. 2 PETITIONER’S CLAIMS 3 1. “Ineffective assistance of counsel” for “neglect[ing] to inform 4 [Petitioner] of rights to contest a decision by judge during imposition of 5 sentencing.” Pet. at 7 (CM/ECF pagination). 6 2. “Ineffective assistance of counsel” for “misinform[ing] [Petitioner] 7 of critical details involving [his] rights to contest case, specifically in regards to 8 severity of the nature of said charges.” Pet. at 7-8. 9 3. “Errors of law” occurred when “[e]xpert witness testimony’s 10 request to introduce factors corroborating diagnoses of mental health disorder 11 denied. Credibility of expert witness impaired in direct relation to denial of 12 request.” Pet. at 8. 13 4. There was insufficient evidence to support Petitioner’s convictions 14 and “in order to sentence accordingly, the court is required to accurately 15 reweigh factual, conclusive material evidential proof beyond a shadow of a 16 doubt.” Pet. at 8. 17 III. 18 DISCUSSION 19 Pursuant to Rule 4 of the Habeas Rules, the Court must review the 20 Petition and, if it plainly appears from the Petition and any attached exhibits 21 that Petitioner is not entitled to relief, the Court must dismiss the Petition. 22 Here, the Petition appears subject to dismissal for at least four reasons: (1) 23 Petitioner asserts vague, conclusory claims; (2) Petitioner has not exhausted his 24 state court remedies; (3) Petitioner has named the wrong respondent; and (4) 25 Petitioner failed to pay the filing fee. 26 First, Petitioner has not clearly set forth the grounds upon which he 27 seeks relief. In Grounds One and Two, Petitioner purports to assert claims of 28 ineffective assistance of counsel based on trial counsel’s failure to notify him of 1 his right to contest “a decision by judge during imposition of sentencing” 2 (Ground One) and the severity of the charges (Ground Two). See Pet. at 7-8. 3 However, Petitioner does not provide any basis for contesting either, let alone 4 shown he was prejudiced by the failure of his counsel to so advise him. In 5 Ground Four, Petitioner purports to assert an insufficiency of the evidence 6 claim, but does not explain why the evidence was insufficient. Instead, he 7 argues “in order to sentence accordingly, the court is required to accurately 8 reweigh” evidence. Id. at 8. Again, however, he provides no explanation 9 regarding this contention. Petitioner was tried by a jury (see Pet. at 2); thus, it 10 is unclear whether Petitioner is referring to the jury’s guilty verdict or 11 something else. The state habeas petition attached to the Petition does not 12 provide clarification on these grounds for relief. 13 Habeas petitions must be “printed, typewritten or legibly handwritten” 14 and signed under penalty of perjury. Habeas Rules, Rule 2(c). Habeas Rules 15 2(c) and 4 require a statement of all grounds for relief and the facts supporting 16 each ground; the petition should state facts that point to a real possibility of 17 constitutional error and show the relationship of the facts to the claim. Habeas 18 Rule 4, Advisory Committee Notes to 1976 Adoption; Mayle v. Felix, 545 19 U.S. 644, 655 (2005); O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) 20 (as amended) (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). 21 Allegations in a petition that are vague, conclusory, palpably incredible, or 22 unsupported by a statement of specific facts, are insufficient to warrant relief, 23 and are subject to summary dismissal. See, e.g., Jones v. Gomez, 66 F.3d 199, 24 204-05 (9th Cir. 1995); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). Here, the 25 Petition falls far short of the minimal clarity required to proceed. 26 Second, under 28 U.S.C. § 2254(b), federal habeas relief may not be 27 granted unless Petitioner has exhausted the remedies available in state courts 28 or an exception to the exhaustion requirement applies. Exhaustion requires 1 that the petitioner’s claims be fairly presented to the state courts and be 2 disposed of on the merits by the highest court of the state. James, 24 F.3d at 3 24; Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979); see also Libberton v. 4 Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). A claim has not been fairly 5 presented to a state court unless the petitioner has described both the operative 6 facts and the federal legal theory on which the claim is based. See Duncan v. 7 Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 8 270, 275-78 (1971); Greenway v. Schriro, 653 F.3d 790, 801 (9th Cir. 2011). As 9 a matter of comity, a federal court will not entertain a habeas corpus petition 10 unless the petitioner has exhausted the available state judicial remedies on 11 every ground presented in the petition. See Rose v. Lundy, 455 U.S. 509, 518- 12 22 (1982). Petitioner has the burden of demonstrating that he has exhausted his 13 available state remedies. See, e.g., Williams v. Craven, 460 F.2d 1253, 1254 14 (9th Cir. 1972) (per curiam). 15 Here, although Petitioner checked the boxes on the form habeas petition 16 indicating that he has exhausted all four grounds for relief, based on the state 17 court records available electronically as well as Petitioner’s answers to other 18 questions on the form habeas petition, it appears that one or more of 19 Petitioner’s claims are unexhausted. For Ground Two, Petitioner asserts he 20 raised this ground for relief in a habeas petition to the California Supreme 21 Court, while he claims he raised Grounds Three and Four in a habeas petition 22 and in a petition for review to the state supreme court. Pet. at 8. However, 23 elsewhere in the Petition, Petitioner indicates he did not file any habeas 24 petitions in the state supreme court. See id. at 5. This is confirmed by a review 25 of the state supreme court’s online docket, which reflects that Petitioner has 26 not sought habeas relief in the California Supreme Court. See Appellate Courts 27 Case Information at https://appellatecases.courtinfo.ca.gov. Pursuant to Fed. 28 R. Evid. 201, the Court takes judicial notice of these state records available 1 electronically. See Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002); United 2 States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 3 244, 248 (9th Cir. 1992). Petitioner appears to concede Ground Two is 4 unexhausted as he listed this claim in response to a question on the form 5 habeas petition asking him to identify any grounds for relief that were not 6 previously presented to the California Supreme Court. Pet. at 9. With respect 7 to Grounds Three and Four, as noted, Petitioner claims he also raised these 8 claims in his petition for review. Petitioner did not attach a copy of his petition 9 for review, but he listed the grounds raised in his Petition. Based on this list, 10 only Ground One appears to potentially correspond to one of the five grounds 11 for relief purportedly raised in Petitioner’s petition for review. See Pet. at 5. 12 Thus, it appears one or more of Petitioner’s claims are unexhausted, rendering 13 the Petition “mixed” and subject to dismissal. 14 Third, typically, the proper respondent for a habeas petition is the 15 warden of the facility in which the petitioner is incarcerated. See Stanley v. 16 Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (as amended); see also 17 Habeas Rule 2(a) (“If the petitioner is currently in custody under a state-court 18 judgment, the petition must name as respondent the state officer who has 19 custody.”). The Ninth Circuit has held the failure to name the correct 20 respondent destroys personal jurisdiction. See Ortiz-Sandoval v. Gomez, 81 21 F.3d 891, 894 (9th Cir. 1996) (as amended); Stanley, 21 F.3d at 360. Here, 22 Petitioner purports to name the People of the State of California, not the 23 warden of the facility where he is incarcerated. 24 Fourth, Petitioner did not pay the $5 filing fee for a federal habeas 25 petition (see 28 U.S.C. § 1914(a)) and did not alternatively file a completed 26 application to proceed without prepayment of the filing fee (“IFP 27 Application”) as required by 28 U.S.C. § 1915. The IFP Application filed with 28 the Petition was not signed by the authorized officer at the institution where he 1 is incarcerated, and did not include a certified copy of Petitioner’s prisoner 2 trust account or institutional equivalent for the six months immediately 3 preceding the filing of the Petition as required by statute. 28 U.S.C. 4 § 1915(a)(2). As a result, the IFP Application is incomplete and cannot be 5 granted. The Clerk is directed to send Petitioner a form IFP Application by a 6 person in custody, which Petitioner is required to prepare in full, and obtain 7 any necessary information and certification from staff at the facility where he is 8 incarcerated if he wishes to proceed without prepayment of the filing fee. 9 IV. 10 CONCLUSION 11 For the foregoing reasons, the Petition is subject to dismissal. Petitioner 12 is ORDERED TO SHOW CAUSE, in writing, by no later than thirty (30) 13 days from the date of this Order, why this action should not be dismissed 14 under Habeas Rule 4 for the reasons stated above. To the extent Petitioner 15 contends he has exhausted his state court remedies, Petitioner is directed to 16 provide information regarding his efforts to exhaust his claims in the state 17 courts, and attach copies of any documents establishing that his claims are 18 indeed exhausted. 19 Alternatively, Petitioner may file an amended petition within thirty (30) 20 days of the date of this Order to attempt to cure the above-referenced defects. 21 The Clerk is directed to send Petitioner a blank copy of the Central District 22 habeas petition form for this purpose. The amended petition should reflect the 23 same case number, be clearly labeled “First Amended Petition,” and be filled 24 out completely, including naming the appropriate respondent. In ¶ 8 of the 25 First Amended Petition, Petitioner should specify separately and concisely 26 each federal constitutional claim that he seeks to raise and answer all of the 27 questions pertaining to each such claim. If Petitioner contends that he 28 exhausted his state remedies, he should list such filings in ¶¶ 4-6 of the habeas 1 || petition form. Petitioner should specify all of the grounds raised in such filings, 2 along with the case number, the date of decision, and the result. 3 Further, if Petitioner still desires to pursue this action in this Court, he 4 ||shall either pay the $5 filing fee or prepare, execute, and file a compliant IFP 5 || Application using the form supplied by the Clerk, including the required 6 || certification from staff at the facility where he is incarcerated. 7 Petitioner is cautioned that a failure to respond timely in compliance 8 || with this Order may result in this action being dismissed for the foregoing 9 ||reasons, for failure to prosecute, and for failure to comply with a Court order. 10 Fed. R. Civ. P. 41(b). 11 12 || Dated: February 24, 2021 13

HN D. EARLY

15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28