Free Notice Re Possible Failure to Exhaust - District Court of California - California

Case 3:08-cv-01146-LAB-POR

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1vs. LARRY SMALL, Warden, Respondent. NATHANIEL WALLACE, Petitioner, NOTICE REGARDING POSSIBLE DISMISSAL OF PETITION FOR FAILURE TO EXHAUST STATE COURT REMEDIES Civil No. 08-1146 LAB (POR) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On June 26, 2008, Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. [Doc. No. 1.] On July 11, 2008, this Court dismissed the Petition without prejudice and with leave to amend for Petitioner's failure to satisfy the filing fee requirement, allege exhaustion of state judicial remedies, and state a cognizable federal claim. [Doc. No. 2.] Petitioner filed a First Amended Petition, along with a request to proceed in forma pauperis on August 5, 2008. [Doc. Nos. 3-4.] In his First Amended Petition ("FAP"), Petitioner has not alleged exhaustion as to claim one. (See FAP at 6.) Having preliminarily determined the petition contains an unexhausted claim, the Court notifies Petitioner of the possible dismissal of his petition. The exhaustion requirement is satisfied by providing the state courts with a "fair opportunity" to rule on Petitioner's constitutional claims. Anderson v. Harless, 459 U.S. 4, 6 (1982). In most instances, a claim is exhausted once it is presented to a state's highest court,

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either on direct appeal or through state collateral proceedings.1 See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002). The constitutional claim raised in the federal proceedings must be the same as that raised in the state proceedings. See Anderson, 459 U.S. at 6. Here, Petitioner asserts in claim one that he is "being unlawfully detained on the premises of an invalid commitment in the department of corrections in violation of the U.S. Constitution." (FAP at 6.) Petitioner acknowledges that he has not raised this claim in the California Supreme Court. (Id.) 2. PETITIONER'S OPTIONS To avoid the Court dismissing the petition on its own accord, Petitioner may choose one of the following options. i) First Option: Demonstrate Exhaustion Petitioner may file further papers with this Court to demonstrate that he has in fact exhausted the claim the Court has determined is likely unexhausted. If Petitioner chooses this option, his papers are due no later than September 10, 2008. Respondent may file a reply by September 25, 2008. ii) Second Option: Voluntarily Dismiss the Petition Petitioner may move to voluntarily dismiss his entire federal petition and return to state court to exhaust his unexhausted claim. Petitioner may then file a new federal petition containing only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 520-21 (1982) (stating that a petitioner who files a mixed petition may dismiss his petition to "return[] to state court to exhaust his claims"). If Petitioner chooses this second option, he must file a pleading with this Court no later than September 10, 2008. Respondent may file a reply by September 25, 2008. 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
28 U.S.C. § 2254 (b)(1)-(2) states: (b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant. (2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
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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).2 Filing a petition in federal court does not stop the statute of limitations from running. Id. at 181-82; Frye v. Hickman, 273 F.3d 1144, 1145-46 (9th Cir. 2001); 28 U.S.C. § 2244(d). iii) Third Option: Formally Abandon Unexhausted Claim Petitioner may formally abandon his unexhausted claim and proceed with his exhausted ones. See Rose, 455 U.S. at 510, 520-21 (stating that a petitioner who files a mixed petition may "resubmit[] the habeas petition to present only exhausted claims"). If Petitioner chooses this third option, he must file a pleading with this Court no later than September 10, 2008. Respondent may file a reply by September 25, 2008. Petitioner is cautioned that once he abandons his unexhausted claim, he may lose the ability to ever raise it in federal court. See Slack v. McDaniel, 529 U.S. 473, 488 (2000) (stating that a court's ruling on the merits of claims presented in a first § 2254 petition renders any later petition successive); see also 28 U.S.C. § 2244 (a)-(b).3 //
28 U.S.C. § 2244 (d) provides: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgement or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(b)(2) provides that a claim presented in a second or successive habeas corpus application under § 2254 shall be dismissed unless: (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
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iv) Fourth Option: File a Motion to Stay the Federal Proceedings Petitioner may move to stay this federal proceeding while he returns to state court to exhaust his unexhausted claim. See Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005) (interpreting Rhines v. Weber, 544 U.S. 269 (2005) as permitting a district court to stay a mixed petition while the petitioner returns to state court); Valerio v. Crawford, 306 F.3d. 742, 770-71 (9th Cir. 2002) (en banc); Calderon v. United States Dist. Ct. for the N. Dist. of Cal., 134 F.3d 981, 986-88 (9th Cir. 1998). If Petitioner chooses this fourth option, he must file a pleading with this Court no later than September 10, 2008. Respondent may file a reply by September 25, 2008. 3. CONCLUSION The Court NOTIFIES PETITIONER THAT HE HAS FILED A PETITION THAT CONTAINS BOTH EXHAUSTED AND UNEXHAUSTED CLAIMS AND IT IS THEREFORE SUBJECT TO DISMISSAL. If Petitioner fails to respond to this Order, the Court will recommend to the District Judge assigned to this case that the Petition be dismissed without prejudice.4 See Rose, 455 U.S. at 522. IT IS SO ORDERED.

DATED: August 25, 2008

LOUISA S PORTER United States Magistrate Judge

Although the dismissal is "without prejudice," Petitioner is again cautioned that any later federal petition may be barred by the statute of limitations. See 28 U.S.C. § 2244(d)(1)-(2); see also footnote two of this Order.

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