United States District Court, C.D. California
Thomas Raymillier Tennard, Jr.
Robert Neuschmid, Acting Warden
Present: The Honorable: ALEXANDER F. MacKINNON, U.S.
CIVIL MINUTES - GENERAL
(In Chambers): ORDER RE FURTHER PROCEEDINGS
first amended petition for a writ of habeas corpus raises
four claims for relief. (ECF No. 7 at 6-7.) On September 20,
2019, Respondent filed a motion to dismiss the petition
arguing that Petitioner has not exhausted his state remedies
with respect to the following claims: (1) Petitioner's
sentence deprived him of his Constitutional rights and
violates that Eighth Amendment's prohibition against
cruel and unusual punishment (Ground Three) and (2)
Petitioner's trial counsel provided ineffective
assistance of counsel in advising Petitioner to reject a plea
offer with a fifteen-year sentence and failing to advise
Petitioner that he faced a Three-Strikes sentence (Ground
Four). (ECF No. 13.)
prisoner is required to exhaust all available state court
remedies before a federal court may grant him habeas relief.
28 U.S.C. § 2254(b); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). To satisfy the
exhaustion requirement, petitioner must fairly present both
the factual and the federal legal basis for his claims to the
highest state court. O'Sullivan, 526 U.S. at
845; Gatlin v. Madding, 189 F.3d 882, 887-888 (9th
concedes that he did not present Ground Four to the
California Supreme Court. (ECF No. 15 at 2-3.) Furthermore,
notwithstanding Petitioner's contrary contention,
reference to the Petition for Review filed in the California
Supreme Court reveals no reference to any federal
constitutional right. (See Respondent's Notice
of Lodgment, Lodged Document 7.)
it appears that Petitioner has failed to exhaust his state
remedies with respect to these two claims for relief, the
entire petition is subject to dismissal. Before dismissing
the petition, however, the Court will provide petitioner an
opportunity to address the exhaustion issue by electing one
of the following three options:
(1) Petitioner may withdraw the unexhausted claims by filing
a Notice of Withdrawal. If Petitioner elects this option, the
matter will proceed on the merits of the remaining exhausted
claims. Petitioner is advised that withdrawal of the
unexhausted claims may preclude federal review of those
claims in any future petition. See 28 U.S.C. §
2244(b) (precluding review of second or successive petitions
with limited exceptions).
(2) Petitioner may file a Motion for Voluntary Dismissal,
requesting dismissal of this entire action without prejudice
so that he may exhaust his state court remedies with respect
to the unexhausted claims before returning to federal court
with a fully exhausted petition. Petitioner is advised that
if he chooses this option, federal review of all of his
claims may be barred by the one-year limitation period.
See 28 U.S.C. § 2244(d).
(3) Petitioner may file a Motion to Stay to stay this action
so that he may present his unexhausted claims to the the
California Supreme Court. If Petitioner chooses this option,
he will need to make the requisite showing under Rhines
v. Weber, 544 U.S. 269 (2005). Specifically, Petitioner
must demonstrate (a) good cause for his failure to exhaust
his claims prior to filing his federal petition, (b) that his
claims are not plainly meritless, and (c) that he has not
engaged in abusive litigation tactics or intentional delay.
Rhines, 544 U.S. at 277-278. If Petitioner files
such a motion, he shall also indicate whether he
alternatively requests a stay pursuant to Kelly v.
Small, 315 F.3d 1063 (9th Cir. 2003) if the Court
determines he is not entitled to a Rhines
shall file a response to this order on or before
November 20, 2019. Petitioner is cautioned
that failure to timely respond to this order may result in
dismissal of this action without prejudice for failure to
exhaust state remedies and/or failure to prosecute.
is so ordered.
 Unlike Rhines, a
Kelly stay “does not require that a petitioner
show good cause for his failure to exhaust state court
remedies.” King v. Ryan, 564 F.3d 1133, 1135
(9th Cir. 2009). However, “[a] petitioner seeking to
use the Kelly procedure will be able to amend his
unexhausted claims back into his federal petition once he has
exhausted them only if those claims are determined to be