Lopez v. Sherman

          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 ...