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SHERRORS v. SCRIBNER

United States District Court, S.D. California


September 22, 2005.

RONNIE JERMAINE SHERRORS, Petitioner,
v.
A.K. SCRIBNER, et al., Respondent.

The opinion of the court was delivered by: LEO PAPAS, Magistrate Judge

NOTICE REGARDING POSSIBLE DISMISSAL OF PETITION FOR FAILURE TO EXHAUST STATE COURT REMEDIES
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner has not exhausted claim numbers 1-9 and 11-14. Having preliminarily determined the petition contains unexhausted claims, the Court notifies Petitioner of the possible dismissal of his petition.

The exhaustion requirement is satisfied by providing the state courts with a "fair opportunity" to rule on Petitioner's constitutional claims. Anderson v. Harless, 459 U.S. 4, 6 (1982). In most instances, a claim is exhausted once it is presented to a state's highest court, either on direct appeal or through state collateral proceedings.*fn1 See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002). The constitutional claim raised in the federal proceedings must be the same as that raised in the state proceedings. See Anderson, 459 U.S. at 6.

  Here, it appears plain from the face of the Petition that Petitioner has not exhausted all of his claims because his Petition for Writ of Habeas Corpus is still pending in the California Supreme Court. However, the Court notes that Petitioner appears to have exhausted claim number 10 in his direct appeal.

  2. PETITIONER'S OPTIONS

  To avoid the Court dismissing the petition on its own accord, Petitioner may choose one of the following options.

  i) First Option: Demonstrate Exhaustion

  Petitioner may file further papers with this Court to demonstrate that he has in fact exhausted the claims the Court has determined are likely unexhausted. If Petitioner chooses this option, his papers are due no later than November 1, 2005. Respondent may file a reply by November 15, 2005.

  ii) Second Option: Voluntarily Dismiss the Petition

  Petitioner may move to voluntarily dismiss his entire federal petition and return to state court to exhaust his unexhausted claims. Petitioner may then file a new federal petition containing only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 520-21 (1982) (stating that a petitioner who files a mixed petition may dismiss his petition to "return? to state court to exhaust his claims"). If Petitioner chooses this second option, he must file a pleading with this Court no later than November 1, 2005. Respondent may file a reply by November 15, 2005.

  Petitioner is cautioned that any new federal petition must be filed before expiration of the one-year statute of limitations. Ordinarily, a petitioner has one year from when his conviction became final to file his federal petition, unless he can show that statutory or equitable "tolling" applies. Duncan v. Walker, 533 U.S. 167, 176 (2001); 28 U.S.C. § 2244(d).*fn2 Filing a petition in federal court does not stop the statute of limitations from running. Id. at 181-82; Frye v. Hickman, 273 F.3d 1144, 1145-46 (9th Cir. 2001); 28 U.S.C. § 2244(d).

  iii) Third Option: Formally Abandon Unexhausted Claims

  Petitioner may formally abandon his unexhausted claims and proceed with his exhausted one. See Rose, 455 U.S. at 510, 520-21 (stating that a petitioner who files a mixed petition may "resubmit? the habeas petition to present only exhausted claims"). If Petitioner chooses this third option, he must file a pleading with this Court no later than November 1, 2005. Respondent may file a reply by November 15, 2005.

  Petitioner is cautioned that once he abandons his unexhausted claims, he may lose the ability to ever raise them in federal court. See Slack v. McDaniel, 529 U.S. 473, 488 (2000) (stating that a court's ruling on the merits of claims presented in a first § 2254 petition renders any later petition successive); see also 28 U.S.C. § 2244 (a)-(b).*fn3

  iv) Fourth Option: File a Motion to Stay the Federal Proceedings

  Petitioner may move to dismiss his unexhausted claims without prejudice and stay this federal proceeding while he returns to state court to exhaust his unexhausted claims. Calderon v. U.S. Dist. Ct. for the N. Dist. of Cal., 134 F.3d 981, 986-88 (9th Cir. 1998); Valerio v. Crawford, 306 F.3d. 742, 770-71 (9th Cir. 2002) (en banc). If Petitioner chooses this fourth option, he must file a pleading with this Court no later than November 1, 2005. Respondent may file a reply by November 15, 2005.

  3. CONCLUSION

  The Court NOTIFIES PETITIONER THAT HE HAS FILED A PETITION THAT CONTAINS BOTH EXHAUSTED AND UNEXHAUSTED CLAIMS AND IT IS THEREFORE SUBJECT TO DISMISSAL. If Petitioner fails to respond to this Order, the Court will recommend to the District Judge assigned to this case that the Petition be dismissed without prejudice.*fn4 See Rose, 455 U.S. at 522.

  IT IS SO ORDERED.

20050922

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