United States District Court, C.D. California
ORDER TO SHOW CAUSE
ROBERT N. BLOCK, Magistrate Judge.
The Court has reviewed the First Amended Petition for Writ of Habeas Corpus ("FAP") filed by appointed counsel herein on March 24, 2014.
Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless petitioner has exhausted the remedies available in the courts of the State. Exhaustion requires that the prisoner's contentions be fairly presented to the state courts and be disposed of on the merits by the highest court of the state. See James v. Borg , 24 F.3d 20, 24 (9th Cir.), cert. denied, 513 U.S. 935 (1994); Carothers v. Rhay , 594 F.2d 225, 228 (9th Cir. 1979). Moreover, a claim has not been fairly presented unless the prisoner has described in the state court proceedings both the operative facts and the federal legal theory on which his claim is based. See Duncan v. Henry , 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Picard v. Connor , 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). As a matter of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in the petition. See Rose v. Lundy , 455 U.S. 509, 518-22, 102 S.Ct. 1198, 71 L.Ed.2d 179 (1982). Petitioner has the burden of demonstrating that he has exhausted available state remedies. See, e.g., Brown v. Cuyler , 669 F.2d 155, 158 (3d Cir. 1982). The Ninth Circuit has held that a federal court may raise the failure to exhaust issue sua sponte and may summarily dismiss on that ground. See Stone v. San Francisco , 968 F.2d 850, 856 (9th Cir. 1992), cert. denied, 506 U.S. 1081 (1993); Cartwright v. Cupp , 650 F.2d 1103, 1104 (9th Cir. 1982) (per curiam), cert. denied, 455 U.S. 1023 (1982); see also Granberry v. Greer , 481 U.S. 129, 134-35, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987).
Here, it appears from the face of the FAP that at least eight of the twelve grounds for relief being alleged by petitioner (i.e., Grounds Four, Five, Six, Seven, Eight, Nine, Ten, and Twelve) have never been presented to the California Supreme Court. Accordingly, petitioner's inclusion of those eight grounds in the FAP renders the FAP a "mixed petition" containing both exhausted and unexhausted claims.
If it were clear that petitioner's unexhausted claims were procedurally barred under state law, then the exhaustion requirement would be satisfied. See Castille v. Peoples , 489 U.S. 346, 351-52, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989); Johnson v. Zenon , 88 F.3d 828, 831 (9th Cir. 1996); Jennison v. Goldsmith , 940 F.2d 1308, 1312 (9th Cir. 1991). However, it is not "clear" here that the California Supreme Court would hold that petitioner's unexhausted claims are procedurally barred under state law, if petitioner were to raise such claims in a habeas petition to the California Supreme Court (which being an original proceeding is not subject to the same timeliness requirement as a Petition for Review of a Court of Appeal decision). While it is conceivable that the California Supreme Court would hold that some or all of petitioner's claims were procedurally barred because petitioner could have raised those claims on appeal, it is not "clear" here that the California Supreme Court would do so. In In re Robbins , 18 Cal.4th 770, 814 n.34, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998), the California Supreme Court noted that the procedural rule that issues that could have been raised on direct appeal cannot be raised initially in a habeas petition (aka the "Dixon rule") is subject to the same exceptions that it delineated in In re Harris , 5 Cal.4th 813, 21 Cal.Rptr.2d 373, 855 P.2d 391 (1993) were exceptions to the procedural rule that any issues actually raised and rejected on appeal cannot be renewed in a habeas petition (aka the "Waltreus rule"), one of which is when "the claimed constitutional error is both clear and fundamental." See Harris , 5 Cal.4th at 829-34. The Court therefore concludes that this is not an appropriate case for invocation of either "exception" cited above to the requirement that a petitioner's federal claims must first be fairly presented to and disposed of on the merits by the state's highest court.
Under the total exhaustion rule, if even one of the claims being alleged by a habeas petitioner is unexhausted, the petition must be dismissed. See Rose , 455 U.S. at 522; see also Coleman v. Thompson , 501 U.S. 722, 731, 115 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Castille , 489 U.S. at 349. However, in Rhines v. Weber , 544 U.S. 269, 277, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), the Supreme Court held that, in certain "limited circumstances, " a district court may stay a mixed petition and hold it in abeyance while the petitioner returns to state court to exhaust his unexhausted claims. Under Rhines, the prerequisites for obtaining a stay while the petitioner exhausts his state remedies are: (1) that the petitioner show good cause for his failure to exhaust his claims first in state court; (2) that the unexhausted claims not be "plainly meritless"; and (3) that petitioner not have engaged in "abusive litigation tactics or intentional delay." See id. at 277-78. Here, petitioner has not even requested that the Court hold the FAP in abeyance until after he exhausts his state remedies with respect to his unexhausted claims, let alone purported to make the three necessary showings under Rhines.
Per Rhines, where the petitioner has presented the district court with a mixed petition and the Court determines that stay and abeyance is inappropriate, the district court must "allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief." See Rhines , 544 U.S. at 278; see also Henderson v. Johnson , 710 F.3d 872, 873 (9th Cir. 2013).
IT THEREFORE IS ORDERED that, on or before April 14, 2014, petitioner either (a) file a formal stay-and-abeyance motion if he believes he can make the requisite three showings; or (b) show cause in writing, if any he has, why this action should not be dismissed without prejudice for failure to ...