The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER DISMISSING PETITION WITHOUT PREJUDICE AND NOTIFYING PETITIONER OF OPTIONS
Petitioner, a state prisoner proceeding pro se, has submitted a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, but has neither paid the filing fee requirement nor filed a motion to proceed in forma pauperis.
Because this Court cannot proceed until Petitioner has either paid the $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to proceed with this case, he must submit, no later than July 12, 2010, a copy of this Order with the $5.00 fee or with adequate proof of his inability to pay the fee.
In addition, although Petitioner has alleged exhaustion of state court remedies with respect to claim one in the Petition, he has not alleged exhaustion as to claims two through six. (See Pet. at 6-9.) The Court hereby notifies Petitioner of the possible dismissal of his Petition for failure to allege exhaustion of state court remedies as to all claims presented, even if he satisfies the filing fee requirement.
Generally, applications for writs of habeas corpus that contain unexhausted claims must be dismissed. See Rose v. Lundy, 455 U.S. 509, 522 (1982). However, federal courts have the discretion to deny a habeas application on the merits notwithstanding a petitioner's failure to fully exhaust state judicial remedies. See 28 U.S.C.A. § 2254(b)(2) (West 2006). The burden of proving that a claim has been exhausted lies with the petitioner. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
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 id.
Petitioner indicates that although he has presented claim one to the California Supreme Court, he has not presented claims two through six to that court. (Pet. at 6-9.)
To avoid the Court dismissing the Petition on its own accord once Petitioner has satisfied the filing fee requirement, 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 his state court remedies with respect to every claim presented. If Petitioner chooses this option, his papers are due no later than July 12, 2010.
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, 455 U.S. at 510, 520-21 (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 July 12, 2010.
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 The statute of limitations does not run while a properly filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that "an application is 'properly filed' when its delivery and acceptance [by the appropriate court officer for placement into the record] are in compliance with the applicable laws and rules governing filings."); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding that a state application for post-conviction relief which is ultimately dismissed as untimely was neither "properly filed" nor "pending" while it was under ...