United States District Court, N.D. California
JOHN G. HEDDERMAN, Petitioner,
SAN MATEO COUNTY SHERIFF, Respondent.
ORDER FOR CLARIFICATION FROM PETITIONER RE: EXHAUSTION
VINCE CHHABRIA, District Judge.
Petitioner John Hedderman has filed a petition for a writ of habeas corpus challenging his conviction, which was entered pursuant to a plea of no contest. In his petition, Hedderman asserts eight claims. Respondent argues that claim five, for violation of Hedderman's right to a speedy trial or sentencing, and claim seven, for violation of Hedderman's due process right to appeal his plea bargain, are unexhausted. In his traverse, Hedderman neither addresses the exhaustion issue nor reasserts these claims. Therefore, he may be voluntarily dismissing them. However, he must specify his wish to dismiss them so that his petition will not be a mixed petition. If he wishes to exhaust them, he must specify that as well.
Prisoners in state custody who wish to challenge their conviction or sentence in federal habeas proceedings 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. See 28 U.S.C. § 2254(b), (c). The exhaustion requirement is satisfied only if the federal claim has been "fairly presented" to the state courts. Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) (en banc). If Hedderman's federal petition contains both exhausted and unexhausted claims, it is a "mixed" petition. Rhines v. Weber, 544 U.S. 269, 277 (2005). The Court cannot adjudicate the merits of a mixed petition. Rose v. Lundy, 455 U.S. 509, 522 (1982); 28 U.S.C. § 2254(b)(2).
To remedy this situation, Hedderman is granted the opportunity to elect either to proceed with only his exhausted claims, or to try to exhaust the unexhausted claims before having this Court consider all his claims. Accordingly, Hedderman must choose whether he wants to -
(1) dismiss the unexhausted claims and proceed with only the exhausted claims, or
(2) dismiss this action and return to state court to exhaust all claims before filing a new federal petition presenting all of his claims, or
(3) file a motion for a stay of these proceedings while he exhausts his unexhausted claims in the California Supreme Court.
Hedderman is cautioned that each option has risks. If he chooses option (1) and goes forward with only his exhausted claims, he may face dismissal of any later-filed petition. See 28 U.S.C. § 2244(b). If he chooses option (2), dismissing this action and returning to state court to exhaust all claims before filing a new federal petition, his new federal petition might be rejected as time-barred. See 28 U.S.C. § 2244(d). Under option (3), his federal case will be administratively closed while he is diligently seeking relief in state court. If he chooses option (3), he must file a motion in this Court to obtain a stay and, if the motion is granted, must act diligently to file a petition with his unexhausted claims in the California Supreme Court, obtain a decision from the California Supreme Court on his unexhausted claims, and file a motion to reopen his case and proceed with his petition in this Court.
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. Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
Any stay must be limited in time to avoid indefinite delay. Id. Reasonable time limits would be 30 days to get to state court, as long as necessary for the state court to adjudicate the claims, and 30 days to get back to federal court (if necessary) after the final ruling on the claims by the state court. Id. at 278; Kelly, 315 F.3d at 1071. If Hedderman moves for a stay, he must show that he satisfies the Rhines criteria or must comply with the King/Kelly requirements.
Based on the foregoing, the Court orders as follows:
1. Within twenty-one days from the date of this order, Hedderman must file a declaration clarifying how he wishes to proceed with his unexhausted claims. If he chooses option three, he must concurrently file a motion for a stay of this action while he exhausts his unexhausted claims in state court.
2. If Hedderman does not respond within twenty-one days, the Court will assume that he wishes to voluntarily dismiss claims five and seven and ...