United States District Court, S.D. California
ORDER DISMISSING PETITION WITHOUT PREJUDICE AND
NOTIFYING PETITIONER OF OPTIONS TO AVOID FUTURE DISMISSAL OF
Michael M. Anello, United States District Judge.
a state prisoner proceeding pro se, has submitted a Petition
for a Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254, but has neither paid the $5.00 filing fee nor submitted
a request to proceed in forma pauperis. ECF No. 1. The
Petition is subject to dismissal for failure to satisfy the
filing fee requirement and failure to allege exhaustion of
state court remedies as to every claim.
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 prejudice. To have this case reopened, Petitioner
must submit, no later than December 31,
2019, a copy of this Order with the $5.00 fee
or with adequate proof of his inability to pay the fee.
OF STATE COURT REMEDIES
Petition presents eleven claims. ECF No. 1 at 6-50.
Petitioner indicates that he has only presented claim one to
the state supreme court and has not presented the remaining
claims to that court. Id.
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, 513 U.S. 364
(1995) 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.” Id. at 365-66
(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). The
burden of proving a claim has been exhausted lies with
Petitioner. Cartwright v. Cupp, 650 F.2d 1103, 1104
(9th Cir. 1981).
district courts must dismiss mixed habeas petitions.”
Pliler v. Ford, 542 U.S. 225, 230 (2004) (citing
Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)). As
set forth above, the Petition is dismissed for failure to
satisfy the filing fee requirement. However, anticipating
that Petitioner may pay the filing fee or be granted leave to
proceed in forma pauperis and have the case reopened, the
Petition will remain subject to dismissal as containing one
exhausted claim and ten unexhausted claims. The Court hereby
notifies Petitioner of his options to avoid a future
dismissal of a mixed petition for failing to allege complete
exhaustion of state court remedies if he satisfies the filing
First Option: Allege Complete Exhaustion
may allege he has in fact exhausted state court remedies as
to all claims.
Second Option: Voluntarily Dismiss the Petition
may move to voluntarily dismiss his entire federal petition
and return to state court to exhaust his unexhausted claims.
He may then file a new federal petition containing only
exhausted claims. See Rose v. Lundy, 455 U.S. 509,
510, 520-21 (stating that a petitioner who files a mixed
petition may dismiss his petition to “return to state
court to exhaust his claims.”) 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).
statute of limitations does not run while a properly filed
state habeas corpus petition is pending in state court. 28
U.S.C. § 2244(d)(2); see Nino v. Galaza, 183
F.3d 1003, 1006 (9th Cir. 1999) (“[W]e hold that the
statute of limitations is tolled from the time the first
state habeas petition is filed until the California Supreme
Court rejects the petitioner's final collateral
challenge.”), overruled in part by Carey v.
Saffold, 536 U.S. 214, 225-26 (2002) (holding that if a
petitioner unreasonably delays filing a habeas petition in a
higher California court after a denial in a lower court, he
is not entitled to statutory tolling during the gap between
those petitions). 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, as amended 439 F.3d 993 (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 statutorily toll the statute of limitations).
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: File a Motion to Stay the ...