United States District Court, C.D. California
Present: The Honorable Sheri Pym, United States Magistrate
Judge.
CIVIL MINUTES-GENERAL
Proceedings:
(In Chambers) Order to Show Cause Why Petition Should Not
Be Dismissed Due to Failure to Exhaust and
Pending State Petition
On
December 12, 2019, petitioner Armando Lopez filed a Petition
for Writ of Habeas Corpus by a Person in State Custody under
28 U.S.C. § 2254 (the “Petition”). This
court having reviewed the Petition, it appears that the
Petition is subject to dismissal because, as indicated in the
Petition, petitioner has not exhausted his state remedies
with respect to the grounds raised in his Petition. Further,
petitioner states he has filed a state habeas petition that
is currently pending before the California Supreme Court,
which presumably could moot the instant federal Petition. The
court will not make a final determination regarding whether
the federal Petition 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 Petition should not be dismissed, and
specifically orders petitioner to respond to the Order to
Show Cause in writing by no later than February 3,
2020. The court further directs petitioner to review
the information that follows, which provides additional
explanation as to why the federal Petition 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 four purported grounds for relief
in his federal habeas Petition, all of which allege either
that he received an unauthorized sentence or in ineffective
assistance of counsel. The Petition indicates that petitioner
has filed a habeas petition in the California Supreme Court
alleging ineffective assistance and requesting recall of his
sentence, but states that petition is still pending. The
Petition further indicates that none of the grounds it raises
have been ruled on by the California Supreme Court, and thus
none of the grounds raised have yet been exhausted. If this
is correct, the Petition is subject to dismissal.
State
Action Pending That Could Moot Federal Petition
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 federal Petition states petitioner has filed a habeas
petition in the California Supreme Court that is still
pending. If it is correct that 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 federal Petition would be subject
to dismissal, unless petitioner requests and obtains a stay
of the action, as discussed further below. See Henderson
v. Johnson, 710 F.3d 872, 874 (9th Cir. 2013).
Petitioner's
Options
The
Ninth Circuit has stated that lower courts “‘have
no obligation to act as counsel or paralegal to pro
se litigants.'” Ford v. Pliler, 590
F.3d 782, 787 (9th Cir. 2009) (quoting Pliler v.
Ford, 542 U.S. 225, 231, 124 S.Ct. 2441, 159 L.Ed.2d 338
(2004)). But the Ninth Circuit has also recognized that
courts may provide pro se litigants with “accurate
instruction” before dismissing a “mixed”
petition containing both exhausted and unexhausted claims.
See Id. at 786 (“The district court gave [the
petitioner] accurate instruction before dismissing his mixed
habeas petitions without prejudice. Pliler does not
allow us to require anything more.”). Petitioners with
fully ...