UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
November 3, 2010
JESUS PEREDA RAMOS, PETITIONER,
J. TIM OCHOA, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
ORDER: (1) DENYING IN FORMA PAUPERIS APPLICATION; (2) DISMISSING CASE WITHOUT PREJUDICE; and (3)NOTIFYING PETITIONER OF FAILURE TO ALLEGE EXHAUSTION OF HIS STATE COURT REMEDIES AND PROVIDING OPTIONS
Petitioner, a state prisoner proceeding pro se, has not paid the $5.00 filing fee and has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a).
REQUEST TO PROCEED IN FORMA PAUPERIS
The request to proceed in forma pauperis is denied because Petitioner has not provided the Court with sufficient information to determine Petitioner's financial status. A request to proceed in forma pauperis made by a state prisoner must include a certificate from the warden or other appropriate officer showing the amount of money or securities Petitioner has on account in the institution. Rule 3(a)(2), 28 U.S.C. foll. § 2254; Local Rule 3.2. Petitioner has failed to provide the Court with the required Prison Certificate.
FAILURE TO ALLEGE EXHAUSTION AS TO ALL CLAIMS
Further, Petitioner has not alleged exhaustion as to claims two and three. (See Pet. at 8-9.) 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 id. Here, claim three, that the victim suffered from "mental issues," and claim four, that he should have been permitted to present expert testimony at trial, appear to be unexhausted. (See Pet. at 8-9.)
2. PETITIONER'S OPTIONS
If Petitioner wishes to pursue this case, he must 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 December 15, 2010. Respondent may file a reply by January 14, 2011.
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 (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 December 15, 2010. Respondent may file a reply by January 14, 2011.
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 consideration by the state court, and therefore does not toll the statute of limitations), as amended 439 F.3d 993. However, absent some other basis for tolling, the statute of limitations continues to run while a federal habeas petition is pending. Duncan, 533 U.S. at 181-82.
iii) Third Option: Formally Abandon Unexhausted Claims
Petitioner may formally abandon his unexhausted claims and proceed with his exhausted ones. 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 December 15, 2010 Respondent may file a reply by January 14, 2011.
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 file a motion to stay this federal proceeding while he returns to state court to exhaust his unexhausted claims. There are two methods available to Petitioner, the "stay and abeyance" procedure and the "withdrawal and abeyance" procedure.
If Petitioner wishes to use the "stay and abeyance" procedure he should ask the Court to stay his mixed petition while he returns to state court to exhaust. Under this procedure he must demonstrate there are arguably meritorious claims which he wishes to return to state court to exhaust, that he is diligently pursuing his state court remedies with respect to those claims, and that good cause exists for his failure to timely exhaust his state court remedies. Rhines v. Webber, 544 U.S. 269, 277-78 (2005).
If Petitioner wishes to use the "withdrawal and abeyance" procedure, he must voluntarily withdraw his unexhausted claim(s), ask the Court to stay the proceedings and hold the fully-exhausted petition in abeyance while he returns to state court to exhaust, and then seek permission to amend his petition to include the newly exhausted claim(s) after exhaustion is complete. King v. Ryan, 564 F.3d 1133, 1141-42 (9th Cir. 2009). Although under this procedure Petitioner is not required to demonstrate good cause for his failure to timely exhaust, the newly exhausted claim(s) must be either timely under the statute of limitations or "relate back" to the claim(s) in the fully-exhausted petition, that is, they must share a "common core of operative facts" with the previously exhausted claim(s). Id. at 1142-43, quoting Mayle v. Felix, 545 U.S. 644. 659 (2005).
If Petitioner chooses this fourth option, he must file a pleading with this Court no later than December 15, 2010. Respondent may file a reply by January 14, 2011.
For all the foregoing reasons, the Court DENIES Petitioner's request to proceed in forma pauperis and DISMISSES this case without prejudice and with leave to amend and notifies Petitioner that he has filed a petition that contains both exhausted and unexhausted claims. In order to proceed with this case, Petitioner must, no later than December 15, 2010: (1) pay the filing fee or provide adequate proof of his inability to pay; and (2) choose one of the options outlined above. If Petitioner fails to respond to this Order, the case will remained dismissed without prejudice.*fn4 See Rose, 455 U.S. at 522. For Petitioner's convenience, the Clerk of Court shall attach to this Order a blank in forma pauperis application.
IT IS SO ORDERED.