IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
September 7, 2005
LEE R. ALEXANDER, PETITIONER,
TOM CAREY, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Claudia Wilken United States District Judge
PETITION AS UNTIMELY
Petitioner Lee R. Alexander, a State prisoner incarcerated at the California State Prison-Solano, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the validity of his State conviction. In an Order dated December 31, 2003, the Court determined that the petition was untimely unless Petitioner could show that he was entitled to equitable tolling and/or delayed commencement of the statute of limitations. (Docket no. 5.) The Court granted Petitioner leave to file an amended petition in order to do so.
Thereafter Petitioner filed what is captioned as an "Opposition to Motion to Dismiss Petition for Writ of Habeas Corpus," which the Court construes as responsive to the Court's Order of dismissal with leave to amend. Petitioner does not assert grounds for equitable tolling or delayed commencement of the statute of limitations. Rather, he argues that the present petition, filed on April 23, 2003, should be construed as an amendment to his earlier petition, Alexander v. Ayers, C 99-3106 CW (PR), which the Court dismissed on September 24, 2001, because it contained only unexhausted claims. This argument is without merit.
A dismissal without prejudice for failure to exhaust terminates the action. See Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999). Pursuant to Federal Rule of Civil Procedure 15(c)(2), a subsequent petition does not relate back to the petition dismissed for failure to exhaust unless a court expressly or impliedly retains jurisdiction. See id.; see also Dils v. Small, 260 F.3d 984, 986-87 (9th Cir. 2001) (federal petition does not relate back to earlier petition whose "life . . . has come to an end."). Cf. Ford v. Hubbard, 330 F.3d 1086, 1107 (9th Cir. 2003), rev'd on other grounds sub nom. Pliler v. Ford, 124 S.Ct. 2441 (2004) (if a mixed petition containing both exhausted and unexhausted claims was dismissed improperly by the district court and the pro se petitioner returned to State court to exhaust his unexhausted claims, a second petition filed without unreasonable delay relates back to and preserves the filing date of the improperly-dismissed initial petition under Rule 15(c)); Anthony v. Cambra, 236 F.3d 568, 576 (9th Cir. 2000) (amendment to an existing petition may relate back under Rule 15(c)(2) if the State had notice of the claims before the statute of limitations period expired). Here, the Court dismissed Petitioner's prior petition because it contained only unexhausted claims. The Court did not retain jurisdiction over the petition expressly or impliedly. In fact, the Court stated expressly in its Order of dismissal:
"Although any later-filed petition will on its face be untimely, Petitioner may be entitled to equitable tolling of the limitations period on the basis of delays in the processing of his current federal petition. . . . Therefore, the Court dismisses the petition without prejudice to refiling it after Petitioner has exhausted all of his claims." Order at 7-8 (citations omitted).*fn1
Because Petitioner has not shown that he is entitled to equitable tolling or delayed commencement of the statute of limitations, the petition is DISMISSED as untimely.
The Clerk of the Court shall enter judgment and close the file.
IT IS SO ORDERED.