UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 22, 2011
JOHN M. SHEA,
MATTHEW CATE, SECRETARY, RESPONDENT.
The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER: (1) DENYING IN FORMA PAUPERIS APPLICATION; (2) DISMISSING CASE WITHOUT PREJUDICE; AND (3) NOTIFYING PETITIONER OF OPTIONS TO AVOID FUTURE DISMISSAL FOR FAILURE TO ALLEGE COMPLETE EXHAUSTION OF STATE COURT REMEDIES
Petitioner, a state prisoner proceeding pro se, has filed a Petition for a 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.
Because this Court cannot proceed until Petitioner has satisfied the filing fee requirement, the Petition is DISMISSED without prejudice. If Petitioner wishes to proceed with this action, he must either pay the $5.00 filing fee or provide the Court with the required Prison Certificate on or before September 26, 2011.
FAILURE TO ALLEGE EXHAUSTION OF STATE JUDICIAL REMEDIES
Further, habeas petitioners who wish to challenge either their state court conviction or the length of their confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state judicial remedies, a California state prisoner must present the California Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. Moreover, to properly exhaust state court remedies a petitioner must allege, in state court, how one or more of his or her federal rights have been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 364 (1995) reasoned: "If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution." Id. at 365-66 (emphasis added). For example, "[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him [or her] the due process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not only in federal court, but in state court." Id. at 366 (emphasis added).
Although Petitioner indicates that he has presented claim one to the state Supreme Court, he does not indicate whether he has raised claims two and three in the California Supreme Court. (Pet. at 4, 6-8.) If Petitioner has raised claims two and three in the California Supreme Court he must so specify. 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).
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); Liegakos v. Cooke, 106 F.3d 1381, 1388 (7th Cir. 1997). Assuming Petitioner satisfies the filing fee requirement and has this case reopened, the Petition will be subject to dismissal for failure to allege complete exhaustion of state judicial remedies as to all claims presented. In order to avoid such a dismissal, Petitioner should consider the following options.
i) First Option: Demonstrate Exhaustion
Petitioner may file further papers with this Court to demonstrate that he has in fact exhausted claims two and three. Or, he may file a First Amended Petition in which he alleges complete exhaustion of all claims presented.
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").
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).*fn1 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 claim(s) and proceed with his exhausted one(s). 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").
Petitioner is cautioned that once he abandons his unexhausted claim(s), 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).*fn2
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 claim(s). 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 claim(s) which he wishes to return to state court to exhaust, that he is diligently pursuing his state court remedies with respect to those claim(s), 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, 1135 (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). King, 564 F.3d at 1141, quoting Mayle v. Felix, 545 U.S. 644. 659 (2005).
CONCLUSION AND ORDER
Petitioner's Motion to proceed in forma pauperis is DENIED and this case is DISMISSED without prejudice for failing to satisfy the filing fee requirement. If Petitioner wishes to proceed with this action he must either pay the $5.00 filing fee or provide the Court with the required Prison Certificate on or before September 26, 2011. In addition, the Court NOTIFIES PETITIONER THAT THE PETITION AS CURRENTLY WRITTEN IS SUBJECT TO DISMISSAL ON THE BASIS THAT PETITIONER HAS NOT ALLEGED COMPLETE EXHAUSTION OF STATE COURT REMEDIES. If Petitioner satisfies the filing fee requirement but, on or before September 26, 2011, fails to either notify the Court of his intention to proceed under one of the options outlined above or file a First Amended Petition in which he alleges exhaustion of state court remedies as to every claim presented, the Petition will be dismissed without prejudice.*fn3 See Rose, 455 U.S. at 522. Petitioner will then be required, if he still wishes to proceed with his claims, to file a new habeas petition which will be provided a new civil case number. The Clerk of Court shall send Petitioner a blank Southern District of California in forma pauperis application which includes the proper Prison Certificate and a blank Southern District of California amended petition form along with a copy of this Order
IT IS SO ORDERED.