United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding pro se, with an application
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner challenges his 2016 conviction. On November 15,
2019, respondent filed a motion to dismiss this action
because the petition is not fully exhausted. Petitioner has
not filed an opposition to the motion.
Rule 230(1) provides in part: “Failure of the
responding party to file written opposition or to file a
statement of no opposition may be deemed a waiver of any
opposition to the granting of the motion . . . .”
Id. Rule 41(b) of the Federal Rules of Civil
Involuntary Dismissal; Effect. If the
plaintiff fails to prosecute or to comply with these rules or
a court order, a defendant may move to dismiss the action or
any claim against it. Unless the dismissal order states
otherwise, a dismissal under this subdivision (b) and any
dismissal not under this rule--except one for lack of
jurisdiction, improper venue, or failure to join a party
under Rule 19--operates as an adjudication on the merits.
petitioner filed two petitions for review in the California
Supreme Court. (ECF Nos. 16-5, 16-10.) As argued by
respondent, however, in the two petitions for review,
petitioner did not raise federal ground: three (denial of
discovery because the prosecutor failed to disclose the
identity of the process server and the investigating
officer's notes); four (a) (prosecutorial misconduct
because the prosecutor allegedly misstated what efforts the
process server made to locate the victim and knowingly used
perjured testimony); and four (b) (trial counsel was
ineffective because he failed to object to the prosecutorial
misconduct). (ECF Nos. 16-5, 16-10.)Thus, respondent argues that
the instant federal petition is a “mixed petition,
” because it contains both exhausted and unexhausted
exhaustion of state court remedies is a prerequisite to the
granting of a petition for writ of habeas corpus. 28 U.S.C.
§ 2254(b)(1). A petitioner satisfies the exhaustion
requirement by providing the highest state court with a full
and fair opportunity to consider all claims before presenting
them to the federal court. Picard v. Connor, 404
U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d
1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S.
1021 (1986). Here, although petitioner has exhausted his
first and second claims for relief, he failed to raise his
third and fourth claims in the California Supreme Court.
Thus, his third and fourth claims are not exhausted, and the
instant petition is a mixed petition.
United States Supreme Court has held that a federal district
court may not entertain a petition for habeas corpus unless
the petitioner has exhausted state remedies with respect to
each of the claims raised. Rose v. Lundy, 455 U.S.
509 (1982). A mixed petition containing both exhausted and
unexhausted claims must generally be dismissed, with leave to
file an amended petition containing only exhausted claims.
Alternatively, under Rhines v. Weber, 544 U.S. 269
(2005), a district court may, in limited circumstances, stay
a mixed petition pending exhaustion of unexhausted claims if:
(1) “the petitioner had good cause for his failure to
exhaust;” (2) “his unexhausted claims are
potentially meritorious;” and (3) “there is no
indication that the petitioner engaged in intentionally
dilatory litigation tactics.” Rhines, 544 U.S.
at 278. Granting a stay under these circumstances requires
that reasonable time limits be imposed. Id. at
petitioner is granted thirty days to file a request for stay
in this action. The request must address each Rhines
factor set forth above. Thereafter, the court will determine
whether to stay this action pending a decision by the
California Supreme Court on petitioner's third claim, or
whether to dismiss the instant petition with leave to file an
amended petition that raises only exhausted
IT IS HEREBY ORDERED that:
Warden Joseph W. Moss is substituted as respondent; and
Petitioner shall file, within thirty days from the date of
this order, a request to stay this action pursuant to
Rhines v. Weber, 544 U.S. 269 (2005). Failure to
comply with this order will result in a recommendation that
this action be dismissed without prejudice.