United States District Court, N.D. California
ORDER DISMISSING PETITION WITH LEAVE TO AMEND AND REQUIRING ELECTION BY PETITIONER
VINCE CHHABRIA, District Judge.
Eric Vernon Parker, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Parker has paid the $5.00 filing fee. For the reasons discussed below, the petition is dismissed with leave to amend and for Parker to elect how he wishes to proceed with his amended petition.
The claims Parker asserts in his petition are difficult to understand. His primary concern appears to be that erroneous charges are in his record, the source of which is his California Department of Justice arrest history. Pet'n at 8. He alleges that the California Department of Corrections and Rehabilitation ("Department of Corrections") relied upon this erroneous information to affix an "R" suffix to Parker's Probation Sentencing Report, and that, but for this error, he would have a speedier release from prison. Pet'n at 9. Parker appears to be asserting a due process violation based upon this state error. Parker also claims prosecutorial misconduct for "raising references to false information, " and ineffective assistance of counsel for failing to appeal the prosecutor's misconduct.
Although Parker submits letters from state agencies rejecting his requests to have his criminal history record corrected, he does not indicate that he has exhausted state court remedies for his constitutional claims.
I. Exhaustion Requirement
A federal court may entertain a habeas petition from a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). 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 presenting 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. 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). The state's highest court must be given an opportunity to rule on the claims even if review is discretionary. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke "one complete round of the State's established appellate review process."). If available state remedies have not been exhausted as to all claims, the district court must dismiss the petition. Rose, 455 U.S. at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). A petition containing only unexhausted claims must be dismissed. Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (citing Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir. 1997)). The petitioner has the burden of pleading exhaustion in his or her habeas petition. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
However, district courts have the authority to issue stays and the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") does not deprive them of that authority. Rhines v. Webber, 544 U.S. 269, 277-78 (2005). Prisoners who may run the risk of having the federal statute of limitations expire while they are exhausting their state remedies may avoid this predicament "by filing a protective' petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted." Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (citing Rhines, 544 U.S. at 277-78). Therefore, a petitioner can ask the district court to stay a mixed petition, that is, one containing exhausted and unexhausted claims, while he exhausts his unexhausted claims in state court. Under Rhines, a petitioner need not delete his unexhausted claims before asking the district court to issue a stay. Jackson v. Roe, 425 F.3d 654, 659-61 (9th Cir. 2005).
In Rhines, the Supreme Court cautioned district courts against being too liberal in allowing a stay because a stay works against several of the purposes of the AEDPA in that it "frustrates AEDPA's objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceeding" and "undermines AEDPA's goal of streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his claims in state court prior to filing his federal petition." Rhines, 544 U.S. at 277. A stay and abeyance "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. at 277-78. Any stay must be limited in time to avoid indefinite delay. Id. Reasonable time limits would be thirty days to get to state court, as long as necessary in state court, and thirty days to get back to federal court after the final rejection of the claims by the state court. See id. at 278; Kelly v. Small, 315 F.3d at 1071.
From Parker's petition, it is not clear what claims he is asserting. He appears to assert a due process claim based on the state error in listing the charges against him. However, a state administrative error may not rise to the level of a federal constitutional violation and, thus, would not be cognizable on habeas review. See 28 U.S.C. § 2254(a) (habeas review addresses violations of the federal constitution or federal statutes). He also appears to assert claims of ineffective assistance of counsel and prosecutorial misconduct. These are federal constitutional claims and are cognizable on habeas review, but before the Court can address them, state court remedies must be exhausted.
Therefore, this petition is dismissed with leave to amend. In an amended petition, Parker must clearly list the claims he is asserting and the factual basis for them. If none of the claims are exhausted, the petition must be dismissed without prejudice for Parker to fully exhausting them in state court and then he may file a new federal petition with exhausted claims. If the petition is a mixed petition, that is, it contains exhausted and unexhausted claims, Parker has the option of: (1) dismissing the unexhausted claims and proceeding with the exhausted ones; or (2) moving for a stay and abeyance of his newly-filed petition (if he chooses to file one) while he exhausts state court remedies. If Parker moves for a ...