Green v. BPH Comm'rs

• Docket Number: 2:23-cv-06339-JAK (SP)
• Decision Date: 30 August 2023
• Parties: RAYMOND A. GREEN v. BPH COMMISSIONERS, et al.
• Court: U.S. District Court — Central District of California

1

RAYMOND A. GREEN
v.
BPH COMMISSIONERS, et al.

No. 2:23-cv-06339-JAK (SP)

United States District Court, C.D. California

August 30, 2023

Present: The Honorable Sheri Pym, United States Magistrate Judge

CIVIL MINUTES - GENERAL

Proceedings: (In Chambers) Order to Show Cause Why Petition Should Not Be Dismissed Due to Failure to Exhaust and Lack of Verification

On August 3, 2023, petitioner Raymond A. Green, a California state prisoner, filed a Petition for Writ of Habeas Corpus (the “Petition”), presumably under 28 U.S.C. § 2254. Petitioner used a state habeas petition form, and the first page of the Petition indicates it was to be filed in the Superior Court. Accordingly, it is not clear that petitioner even intended to bring a federal habeas petition in this court.

Assuming petitioner did intend to file a federal habeas petition, however, this court has reviewed the Petition. Without addressing whether the Petition raises a cognizable federal claim, it appears the Petition is subject to dismissal because, as indicated in the Petition, petitioner has not exhausted his state remedies with respect to the ground raised in his Petition. The Petition is also unsigned. The court will not make a final determination regarding whether the federal Petition should be dismissed, however, without giving petitioner an opportunity to address these issues.

Accordingly, the court hereby issues this Order to Show Cause why the Petition should not be dismissed, and specifically orders petitioner to respond to the Order to Show Cause in writing by no later than September 29, 2023. The court further directs petitioner to review the information that follows, which provides additional explanation as to why the federal Petition appears to be subject to dismissal and may assist petitioner in determining how to respond.

2

The Verification Requirement

Under 28 U.S.C. § 2242, all habeas petitions “shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.” See also Rule 2(c)(5) of the Rules Governing Section 2254 Cases (all habeas petitions must “be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242”). Here, the form petitioner used for his Petition has a space for petitioner to sign and verify the Petition under penalty of perjury, but the space is left blank. As such, it is subject to dismissal for this reasons.

This is a matter that petitioner could easily remedy by submitting a signed petition. But as discussed below, the Petition also suffers from another defect that may not be as easily remedied.

The Exhaustion Requirement

A state prisoner must exhaust his or her state court remedies before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). To satisfy the exhaustion requirement, a habeas petitioner must fairly present his or her federal claims in the state courts in order to give the State the opportunity to pass upon and correct alleged violations of the prisoner's federal rights. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam). A habeas petitioner must give the state courts “one full opportunity” to decide a federal claim by carrying out “one complete round” of the state's appellate process in order to properly exhaust a claim. O'Sullivan, 526 U.S. at 845.

For a petitioner in California state custody, this generally means that the petitioner must have fairly presented his or her claims in a petition to the California Supreme Court. See O'Sullivan, 526 U.S. at 845 (interpreting 28 U.S.C. § 2254(c)); Gatlin v. Madding, 189 F.3d 882,888 (9th Cir. 1999) (applying O'Sullivan to California). A claim has been fairly presented if the petitioner has both “adequately described the factual basis for [the] claim” and “identified the federal legal basis for [the] claim.” Gatlin, 189 F.3d at 888.

In this case, petitioner argues he should have been released on parole. But although petitioner challenges the actions of the Board of Parole Hearings, including an

3

alleged illegal en banc hearing by the BPH on January 18, 2022, there is no indication that petitioner has raised his parole denial with the California Supreme Court. On the contrary, petitioner checked a box in the Petition stating that he has not sought review in the California Supreme Court. As such,...