United States District Court, S.D. California
ORDER (1) DISMISSING CASE WITHOUT PREJUDICE, AND (2)
GIVING NOTICE OF OPTIONS DUE TO FAILURE TO EXHAUST STATE
JANIS L. SAMMARTINO JUDGE
a state prisoner proceeding pro se, has filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
TO SATISFY THE FILING FEE REQUIREMENT
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.
TO ALLEGE EXHAUSTION OF STATE COURT REMEDIES AS TO ALL CLAIMS
IN THE PETITION
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).
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).
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
First Option: Allege Exhaustion
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.
Second Option: Voluntarily Dismiss the Petition
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.
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). 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.
Third Option: Formally Abandon ...