IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
March 29, 2011
GREG LEWIS, WARDEN, PELICAN BAY STATE PRISON DEFENDANT.
The opinion of the court was delivered by: Richard Seeborg United States District Judge
ORDER REQUIRING ELECTION
United States court For the Northern District of California
This is a federal habeas corpus action filed by a state prisoner pursuant to 28 U.S.C. § 2254.
The petition acknowledges that petitioner has not exhausted his state remedies as to three of the 23 eight claims presented. Prisoners in state custody who wish to challenge collaterally in federal 24 habeas proceedings either the fact or length of their confinement are first required to exhaust state 25 judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest 26 state court available with a fair opportunity to rule on the merits of each and every claim they seek 27 to raise in federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515--16 (1982).
In fact, a federal district court may not grant the writ unless state court remedies are exhausted or there is either "an absence of available state corrective process" or such process has been "rendered ineffective." See 28 U.S.C. § 2254(b)(1)(A)-- (B). If available state remedies have not been exhausted as to all claims, the district court must dismiss the petition. See Lundy, 455 U.S. at 510. court to exhaust the unexhausted claim; (2) proceed with the exhausted claims only; or (3) move to 6 stay the petition, exhaust the unexhausted claims and then move to amend the stayed petition to add 7 the exhausted claim. See Ford v. Hubbard, 305 F.3d 875, 882--86 (9th Cir. 2002). Petitioner must 8 inform the Court of his choice in writing within 30 days from the date of this order. Failure to 9 inform the Court by such date will result in dismissal of the action without further notice to 10 petitioner.
If he chooses option (1), to dismiss this case and return later with a completely exhausted petition, the new petition may be barred by the one-year statute of limitations contained in 28 U.S.C. § 2244(d)(1). Time during which a properly filed application for state collateral review (such as a state habeas petition) is pending is excluded from the one-year time limit. Id. § 2244(d)(2). from the one-year limit. Duncan v. Walker, 121 S. Ct. 2120, 2129 (2001).
Petitioner is warned that if he chooses option (2), to proceed now with his exhausted claims only, a subsequent petition directed to the same conviction (for instance, attempting to raise the 19 now-unexhausted claim) may be barred as second or successive or abusive. See 28 U.S.C. § 2244(b)(1). He also would have to obtain permission from the Ninth Circuit Court of Appeals in 21 order to file such a second petition. See 28 U.S.C. § 2244(b)(3)(A).
Court and to obtain a decision from the California Supreme Court on his unexhausted claim.
Court's final decision on his unexhausted claims. In order to qualify for a stay, he must also show 26 good cause for why this claim was not previously exhausted and that it is "potentially meritorious" 27 under Rhines v. Webber, 544 U.S. 269 (2005). While it appears that Petitioner may intend to Petitioner has three choices. Petitioner can opt to (1) dismiss the petition and return to state Petitioner is reminded that the time a federal petition, such as this one, is pending is not excluded If he chooses option (3), Petitioner must act diligently to file in the California Supreme Petitioner would also be required to notify this Court within thirty days of the California Supreme proceed under this option, his request that this petition be held "in abeyance" must be presented by a 2 motion supported by the requisite factual and legal showing.
IT IS SO ORDERED.
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