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Torres v. Madden

United States District Court, S.D. California

May 9, 2017

MIGUEL ANGEL TORRES, Petitioner,
v.
RAYMOND MADDEN, Warden, Respondent.

          ORDER (1) DISMISSING CASE WITHOUT PREJUDICE, AND (2) GIVING NOTICE OF OPTIONS DUE TO FAILURE TO EXHAUST STATE COURT REMEDIES

          HON. JANIS L. SAMMARTINO JUDGE

         Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.

         FAILURE TO SATISFY THE FILING FEE REQUIREMENT

         Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in forma pauperis. Because this Court cannot proceed until Petitioner has either paid the $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the case WITHOUT PRJEUDICE. See Rule 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to proceed with this case, he must submit, no later than July 7, 2017, a copy of this Order with the $5.00 fee or with adequate proof of his inability to pay the fee.

         FAILURE TO ALLEGE EXHAUSTION OF STATE COURT REMEDIES AS TO ALL CLAIMS IN THE PETITION

         In addition, habeas petitioners who wish to challenge either their state court conviction or the length of their confinement in state prison must first exhaust state judicial remedies. 28 U.S.C. §§ 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state judicial remedies, a California state prisoner must present the California Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 28 U.S.C. §§ 2254(b), (c); Granberry, 481 U.S. at 133-34. Moreover, to properly exhaust state court remedies a petitioner must allege, in state court, how one or more of his or her federal rights have been violated. The Supreme Court in Duncan v. Henry reasoned: “If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.” 513 U.S. 364, 365-66 (1995) (emphasis added). For example, “[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him [or her] the due process of law guaranteed by the Fourteenth Amendment, he [or she] must say so, not only in federal court, but in state court.” Id. at 366 (emphasis added).

         Of the five claims presented in the Petition, Petitioner indicates he has presented claims one, two, and three to the California Supreme Court, but has not indicated that he presented claims four and five to that court. (See Pet. at 20-26.) It appears, therefore, that Petitioner has filed a “mixed” petition; that is, one which presents both exhausted and unexhausted claims. In Rose v. Lundy, the United States Supreme Court held that a mixed petition is subject to dismissal because it violates the “total exhaustion rule” required in habeas petitions brought pursuant to § 2254, but that a petitioner must be permitted an opportunity to cure that defect prior to dismissal. 455 U.S. 509, 514-20 (1982).

         Having preliminarily determined the Petition contains unexhausted claims (grounds four and five) and exhausted claims (grounds one, two and three), the Court notifies Petitioner of his options.

         (i) First Option: Allege Exhaustion

         Petitioner may file further papers with this Court to demonstrate that he has in fact exhausted the claims the Court has determined are unexhausted. If Petitioner chooses this option, his papers are due no later than July 7, 2017. Respondent may file a reply by August 7, 2017.

         (ii) Second Option: Voluntarily Dismiss the Petition

         Petitioner may voluntarily dismiss his entire federal petition and return to state court to exhaust any unexhausted claim(s). He may thereafter file a new federal petition in this Court containing only exhausted claims. See Rose, 455 U.S. at 520-21 (stating that a petitioner who files a mixed petition may dismiss his petition to “return[] to state court to exhaust his claims”). If Petitioner chooses this option, he must file a pleading with this Court no later than July 7, 2017. Respondent may file a reply by August 7, 2017.

         Petitioner is cautioned that any new federal petition must be filed before expiration of the one-year statute of limitations. Ordinarily, a petitioner has one year from when his conviction became final to file his federal petition, unless he can show that statutory or equitable “tolling” applies. Duncan v. Walker, 533 U.S. 167, 176 (2001); 28 U.S.C. § 2244(d).[1] The statute of limitations does not run while a properly filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is ‘properly filed' when its delivery and acceptance [by the appropriate court officer for placement into the record] are in compliance with the applicable laws and rules governing filings”); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding that a state application for post-conviction relief which is ultimately dismissed as untimely was neither “properly filed” nor “pending” while it was under consideration by the state court, and therefore does not toll the statute of limitations), as amended 439 F.3d 993. However, absent some other basis for tolling, the statute of limitations continues to run while a federal habeas petition is pending. Duncan, 533 U.S. at 181-82.

         (iii) Third Option: Formally Abandon ...


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