Opinion
ED CV 24-01192-JLS (DFM)
07-15-2024
Malcolm Gordon v. Sheriff Chad Bianco
Present Honorable Douglas F. McCormick, United States Magistrate Judge.
CIVIL MINUTES - GENERAL
Proceedings: (IN CHAMBERS) Order to Show Cause
I. BACKGROUND
On June 4, 2024, Petitioner Malcolm Gordon, a state pretrial detainee proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody under 28 U.S.C. § 2241. See Dkt. 1. Petitioner is awaiting trial in People v. Gordon, Case No. RIF1903203, for first-degree murder and other charges. See https://public-access.riverside.courts.ca.gov/ (search “RIF1903203”) (last accessed July 15, 2024).
Petitioner asserts that: (1) he was denied bail due to his race; (2) he was denied bail with the use of false evidence; (3) other similarly situated defendants are granted bail; and (4) his bail is excessive. See Petition at 3-4.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” For the reasons discussed below, Petitioner is ordered to show cause why this action should not be dismissed for failure to exhaust state judicial remedies.
A pretrial detainee's challenge to a bail determination is properly raised under 28 U.S.C. § 2241. See Stack v. Boyle, 342 U.S. 1, 6-7 (1951); Arevalo v. Hennessy, 882 F.3d 763, 767 (9th Cir. 2018). The Ninth Circuit has “not yet decided whether district courts have the authority to grant bail pending resolution of a habeas petition,” but if the authority exists, any such relief would be reserved for “extraordinary cases involving special circumstances or a high probability of success.” United States v. McCandless, 841 F.3d 819, 822 (9th Cir. 2016).
Under 28 U.S.C. § 2254(b), federal habeas relief may not be granted unless a petitioner has exhausted the remedies available in state court. Exhaustion requires that the petitioner's contentions be fairly presented to the state courts, see Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011), and disposed of on the merits by the highest court of the state, see Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002). A claim has not been fairly presented unless the prisoner has described in the state-court proceedings both the operative facts and the federal legal theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam).
A federal court may raise a habeas petitioner's failure to exhaust state remedies sua sponte. See Stone v. City and County of San Francisco, 968 F.2d 850, 855-56 (9th Cir. 1992) (as amended). The petitioner has the burden of demonstrating he has exhausted available state remedies. See Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972) (per curiam). Further, as a matter of comity, a federal court will not entertain a habeas petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in it. See Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
Here, it is clear from the Petition and state court records that Petitioner has not exhausted his state remedies. On June 13, 2024, Petitioner filed a state habeas petition in the California Court of Appeal, which is still pending. See Petition at 4; see also https://appellatecases.courtinfo.ca.gov/ (search “E084063”) (last accessed July 15, 2024). Furthermore, Petitioner has not filed a habeas petition with the California Supreme Court. See https://appellatecases.courtinfo.ca.gov/ (search “Gordon, Malcolm) (last accessed July 15, 2024).
III. CONCLUSION
Petitioner is ORDERED TO SHOW CAUSE within twenty-one (21) days why the Petition should not be dismissed as unexhausted. See Bullock v. Schell, No. 23-501, 2024 WL 665925, at *1-2 (D. Haw. Feb. 16, 2024) (dismissing habeas petition based on alleged excessive bail because petitioner failed to exhaust his claims).
Petitioner is warned that his failure to timely respond to this Order will result in a recommendation that this action be dismissed without prejudice for failure to prosecute. See Fed.R.Civ.P. 41(b).