United States District Court, C.D. California
ORDER TO SHOW CAUSE
JEAN ROSENBLUTH, Magistrate Judge.
On June 3, 2015, Petitioner filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging her conviction for grand theft. (Pet. at 2.) The Petition appears to raise five claims, including ground five, which asserts that "Detective Tapia lied on the stand when testifying." (Id. at 5-6.)
Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a petitioner has exhausted the remedies available in state court. Exhaustion requires that the petitioner's contentions were fairly presented to the state courts, Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011), and disposed of on the merits by the highest court of the state, Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002). As a matter of comity, a federal court will not entertain a habeas petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in it. See Rose v. Lundy, 455 U.S. 509, 518 (1982). A federal court may raise the failure-to-exhaust issue sua sponte and summarily dismiss on that ground. See Granberry v. Greer, 481 U.S. 129, 134-35 (1987); Stone v. City & Cnty. of S.F., 968 F.2d 850, 856 (9th Cir. 1992) (dictum).
Petitioner acknowledges that ground five has never been presented to the California Supreme Court (see Pet. at 7 (stating that claim was not previously raised because she was advised by her appellate attorney that "only mistakes committed are appealed")); in contrast, it appears that all other grounds have been exhausted in a Petition for Review before the California Supreme Court (id. at 5-7). Ground five therefore is unexhausted, and her inclusion of that claim renders the Petition a "mixed petition, " containing both exhausted and unexhausted claims. Such petitions must generally be dismissed. See Rose, 455 U.S. at 522.
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 any unexhausted claims. See Rhines v. Weber, 544 U.S. 269, 277 (2005). Under Rhines, the prerequisites for obtaining a stay while the petitioner exhausts her state remedies are as follows: (1) the petitioner must show good cause for her failure to earlier exhaust the claim in state court, (2) the unexhausted claim must not be "plainly meritless, " and (3) the petitioner must not have engaged in "abusive litigation tactics or intentional delay." Id. at 277-78.
Petitioner acknowledges that ground five is unexhausted but does not fully explain why she did not earlier raise the claim, which appears to concern a matter she knew about at the time of trial. Moreover, because the claim is wholly conclusory as presented, it appears to be "plainly meritless." Indeed, because she states that her attorney "should have objected" to the detective's testimony (Pet. at 7), it is not clear whether she seeks to raise an ineffective-assistance-of-counsel claim or some kind of prosecutorial misconduct or Napue claim. Thus, it is unclear from the face of the Petition whether Petitioner can meet the Rhines requirements.
IT THEREFORE IS ORDERED that within 21 days of the date of this Order, Petitioner do one of the following: (1) file a formal stay-and-abey motion if she believes she can make the required showings under Rhines; (2) voluntarily dismiss the Petition without prejudice under Federal Rule of Civil Procedure 41(a)(1), with the understanding that any later petition may be time barred under § 2244(d)(1); (3) voluntarily dismiss ground five of the Petition and elect either to proceed on the exhausted claims - which she must specifically identify - or seek a stay of the fully exhausted Petition under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) (as amended) (allowing for stays of fully exhausted federal petitions without showing of good cause), overruling on other grounds recognized by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007), with the understanding that she will be allowed to amend any newly exhausted claim back into the Petition only if the claim is timely or "relates back" to the original claims; or (4) show cause in writing why this action should not be dismissed without prejudice for failure to exhaust state remedies.
Plaintiff is expressly warned that her failure to timely comply with this Order may result in the Petition being dismissed for the reasons ...