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Perkins v. People

United States District Court, C.D. California

May 19, 2017


          Present: Honorable Sheri Pym, United States Magistrate Judge


         Proceedings: (In Chambers) Order to Show Cause Why First Amended Petition Should Not Be Dismissed Due to Failure to Exhaust and Pending State Petition

         On May 11, 2017, petitioner Devon-Samuel James-Singleton Perkins filed a First Amended Petition for Writ of Habeas Corpus by a Person in State Custody under 28 U.S.C. § 2254 (the “FAP”), following the court's dismissal of his initial petition in this case with leave to amend. The FAP corrects the deficiencies identified in the initial petition, but it reveals others.

         In particular, it appears that the FAP is subject to dismissal because, as indicated in the FAP, petitioner has not exhausted his state remedies with respect to all the grounds raised in his FAP. Further, petitioner states that a habeas petition is currently pending before the California Supreme Court for review, and that he has a pending petition for writ of certiorari before the United States Supreme Court, either of which could moot the instant FAP. The court will not make a final determination regarding whether the FAP should be dismissed, however, without giving petitioner an opportunity to address these issues.

         Accordingly, the court hereby issues this Order to Show Cause why the FAP should not be dismissed, and specifically orders petitioner to respond to the Order to Show Cause in writing by no later than June 19, 2017. The court further directs petitioner to review the information that follows, which provides additional explanation as to why the FAP appears to be subject to dismissal and may assist petitioner in determining how to respond.

         The Exhaustion Requirement

         A state prisoner must exhaust his or her state court remedies before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). To satisfy the exhaustion requirement, a habeas petitioner must fairly present his or her federal claims in the state courts in order to give the State the opportunity to pass upon and correct alleged violations of the prisoner's federal rights. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam). A habeas petitioner must give the state courts “one full opportunity” to decide a federal claim by carrying out “one complete round” of the state's appellate process in order to properly exhaust a claim. O'Sullivan, 526 U.S. at 845.

         For a petitioner in California state custody, this generally means that the petitioner must have fairly presented his or her claims in a petition to the California Supreme Court. See O'Sullivan, 526 U.S. at 845 (interpreting 28 U.S.C. § 2254(c)); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (applying O'Sullivan to California). A claim has been fairly presented if the petitioner has both “adequately described the factual basis for [the] claim” and “identified the federal legal basis for [the] claim.” Gatlin, 189 F.3d at 888.

         In this case, petitioner has raised two purported grounds for relief in the FAP: (1) the court imposed an illegal sentencing enhancement; and (2) ineffective assistance of appellate counsel in not appealing the enhancement. The FAP indicates that ground one has been raised in a habeas petition to the California Supreme Court that is still pending, and ground two has never been raised before a state court. Because the FAP indicates that neither of the grounds it raises have been ruled on by the California Supreme Court, it appears neither of the grounds raised have yet been exhausted. If this is correct, the FAP is subject to dismissal.

         Further, even if the California Supreme Court rules on ground one, it appears ground two will still be unexhausted. The inclusion of both exhausted and unexhausted claims in a habeas petition renders it mixed and subject to dismissal without prejudice. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (“In sum, because a total exhaustion rule promotes comity and does not unreasonably impair the prisoner's right to relief, we hold that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims.”).

         Action Pending That Could Moot FAP

         As just noted, when a claim raised in a federal habeas petition is still pending before a state court, the petitioner has not met the exhaustion requirement because he has not given the state court the first opportunity to address the federal claim. See Duncan, 513 U.S. at 365. “If the prisoner's claim is meritorious, and if the state remedy is prompt and complete, there is no need to bring post-conviction proceedings in federal courts.” Sherwood v. Tomkins, 716 F.2d 632, 633 (9th Cir. 1983) (internal quotation marks and citation omitted).

         Furthermore, a pending state appeal or petition renders a federal habeas petition subject to dismissal even if the claim raised in the federal petition is different from the issue raised in a pending state appeal or petition. See Sherwood, 716 F.2d at 634 (“When . . . an appeal of a state criminal conviction is pending, a would-be habeas corpus petitioner must await the outcome of his appeal before his state remedies are exhausted, even where the issue to be challenged . . . has been finally settled in the state courts.”); see also Schnepp v. Oregon, 333 F.2d 288, 288 (9th Cir. 1964) (per curiam) (state remedies not exhausted where a state post-conviction proceeding is pending). This is because, “even if the federal constitutional question raised by the habeas corpus petitioner cannot be resolved in a pending state appeal, that appeal may result in the reversal of the petitioner's conviction on some other ground, thereby mooting the federal question.” Sherwood, 716 F.2d at 634 (citing Davidson v. Klinger, 411 F.2d 746, 747 (9th Cir. 1969) (per curiam)).

         Here, the FAP states petitioner currently has a pending petition for certiorari before the United States Supreme Court, and a pending habeas petition before the California Supreme Court. The court has verified that the California Courts' online Appeal Courts Case Information shows at least that petitioner has a pending habeas corpus proceeding in case number S241760. If petitioner retains a pending state action which may moot or otherwise affect his alleged constitutional claims before this Court, he must await the outcome of that action before presenting his claims in federal court, and thus the FAP would be ...

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