United States District Court, N.D. California
EON L. MEYERS, Petitioner,
ANTHONY HEDGPETH, Warden, Respondent.
ORDER GRANTING IN PART AND DENYING IN PART RESPONDENT'S RENEWED MOTION TO DISMISS; DENYING PETITIONER'S RENEWED MOTION TO STAY ACTION; AMENDED BRIEFING SCHEDULE Dkt. Nos. 60 and 61
THELTON E. HENDERSON, District Judge.
On November 2, 2011, Petitioner Leon L. Meyers, an inmate at Salinas Valley State Prison, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 27, 2012, Petitioner filed a "supplemental petition." On April 17, 2012, the Court issued an order to show cause. On May 1, 2012, Petitioner filed a motion to amend the petition. On June 5, 2012, Petitioner filed a third amendment to the petition. On June 28, 2012, the Court instructed Petitioner to file an amended petition encompassing all the claims he wished to present. On July 27, 2012, Petitioner filed an amended petition asserting 54 claims. On March 19, 2013, the Court issued an amended order to show cause.
Thereafter, Respondent filed a motion to dismiss the petition for failure to exhaust administrative remedies, and Petitioner filed a motion to stay and abey the petition so that he could return to state court to exhaust remedies. On September 6, 2013, the Court denied both motions without prejudice but directed Petitioner to establish the exhaustion status of all his claims. Specifically, the Court directed Petitioner to list his claims in a chart format, stating for each claim whether the claim had been exhausted. For each claim that Petitioner identified as exhausted, the Court directed Petitioner to indicate, on the chart, the document and case number in which Petitioner presented the claim to the California Supreme Court and to indicate how and when the California Supreme Court ruled on said claim. On September 25, 2013, Petitioner filed the chart as instructed. (See Dkt. 60 at 6-8.) Therein, Petitioner concedes that 33 of his 54 claims remain unexhausted. Together with his chart, Petitioner filed a renewed motion to stay and abey his petition. Respondent has also filed a renewed motion to dismiss asserting that only nine of Petitioner's claims should go forward.
Respondent argues that all but nine of Petitioner's claims should be dismissed on the ground that they are unexhausted.
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by providing the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b)-(c). The exhaustion-of-state-remedies doctrine reflects a policy of federal-state comity to give the state "an initial opportunity to pass upon and correct alleged violations of its prisoners federal rights." Picard v. Connor , 404 U.S. 270, 275 (1971) (internal quotation and citation omitted). A federal district court must dismiss a federal habeas petition containing any claim as to which state remedies have not been exhausted. Rhines v. Weber , 544 U.S. 269, 273 (2005).
The exhaustion requirement is satisfied only if a federal claim has been "fairly presented" to the state courts. Picard , 404 U.S. at 275. It is not sufficient to raise only the facts supporting the claim; rather, "the constitutional claim... inherent in those facts" must be brought to the attention of the state court. See Picard , 404 U.S. at 277. The state's highest court must "be alerted to the fact that the prisoners are asserting claims under the United States Constitution." Duncan v. Henry , 513 U.S. 364, 365-66 (1995). "In order to alert the state court, a petitioner must make reference to provisions of the federal Constitution or must cite either federal or state case law that engages in a federal constitutional analysis." Fields v. Waddington , 401 F.3d 1018, 1021 (9th Cir. 2005); see, e.g., Dye v. Hofbauer , 546 U.S. 1, 3-4 (2005) (finding federal due process claim based on prosecutorial misconduct fairly presented where text of brief cited 5th and 14th Amendments and federal cases concerning alleged violation of federal due process rights in context of prosecutorial misconduct).
In order to appropriately exhaust his factual allegations in state court, a petitioner must present a "thorough description of the operative facts before the highest state court." Kelly v. Small , 315 F.3d 1063, 1069 (9th Cir. 2002), overruled on other grounds by Robbins v. Carey , 481 F.3d 1143 (9th Cir. 2007). New factual allegations do not render a claim unexhausted, however, unless they "fundamentally alter the legal claim already considered by the state courts." Vasquez v. Hillery , 474 U.S. 254, 260 (1986); Nickerson v. Roe , 260 F.Supp.2d 875, 891 (N.D. Cal. 2003), overruled on other grounds by Lee v. Lampert , 610 F.3d 1125 (9th Cir. 2010). Thus, in habeas proceedings, federal courts may not entertain new evidence that was never presented to the state courts and "places the claim in a significantly different posture.'" Nickerson , 260 F.Supp.2d at 891 (quoting Nevius v. Sumner , 852 F.2d 463, 470 (9th Cir. 1988)).
Where a petition contains both exhausted and unexhausted claims, it is referred to as a "mixed" petition. See Rhines , 544 U.S. at 277. A district court cannot adjudicate the merits of a habeas petition containing any claim as to which state remedies have not been exhausted, such as a mixed petition. See Rose v. Harrison , 455 U.S. 509, 522 (1982). A district court may, however, stay mixed petitions to allow the petitioner to exhaust in state court. Rhines , 544 U.S. at 277-78. A stay under Rhines, "is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court, " the claims are not meritless, and there are no intentionally dilatory litigation tactics by the petitioner. Id . Any such stay must be limited in time to avoid indefinite delay. Id.
As noted above, Petitioner concedes that 33 of his 54 claims remain unexhausted. Accordingly, at a minimum, 33 claims are subject to dismissal unless Petitioner can show he is entitled to a stay.
Of the 21 claims that Petitioner asserts to have exhausted, Respondent concedes that 9 are exhausted. Therefore, the exhaustion status of 12 claims remains in dispute. These 12 claims are:
(1) Claim A of the July 27, 2012 amended petition (Dkt. 26 at 9); Claim 1 from Petitioner's chart (Dkt. 60 at 6): Trial court violated Petitioner's right to a speedy preliminary hearing under Cal. Penal Code § 859b.
(2) Claim B of the July 27, 2012 amended petition (Dkt. 26 at 9); Claim 2 from Petitioner's chart (Dkt. 60 at 6): Trial court violated Petitioner's rights under Cal. Penal Code § 859b when it continued the preliminary hearing.
(3) Claim C of the July 27, 2012 amended petition (Dkt. 26 at 9); Claim 3 from Petitioner's chart (Dkt. 60 at 6): Trial court violated Petitioner's rights under Cal. Penal Code § 859b when it granted the ...