Arthur Frank Torres v. Raymond Madden

Filing 6

(In Chambers) ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED BECAUSE IT CONTAINS UNEXHAUSTED CLAIMS by Magistrate Judge Rozella A. Oliver. On July 8, 2015, petitioner Arthur Frank Torres ("Petitioner"), a California state prisoner, filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") pursuant to 28 U.S.C. § 2254. ECF No. 1. Having reviewed the Petition, the Court finds that it is subject to dismissal because, as Petitioner admits, two of his seven claims are unexhausted. The Court ORDERS Petitioner to respond to this Order by August 3, 2015 and indicate which of the four options he wishes to pursue. Petitioner is expressly warned that failure to time ly file a declaration or other response to this Order will result in a recommendation that this action be dismissed with prejudice for his failure to prosecute and obey Court orders pursuant to Federal Rule of Civil Procedure 41(b). (SEE ORDER FOR FURTHER DETAILS) (Attachments: # 1 Appendix) (gr)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.:
Title:

CV 15-5159 RT (RAO)
Arthur Frank Torres v. Raymond Madden

Present:

Date:

July 20, 2015

The Honorable ROZELLA A. OLIVER, U.S. MAGISTRATE JUDGE
Gay Roberson
Deputy Clerk

N/A
Court Reporter / Recorder

Attorneys Present for Plaintiff(s):

Attorneys Present for Defendant(s):

N/A

N/A

Proceedings:

(In Chambers) ORDER TO SHOW CAUSE WHY THIS ACTION
SHOULD NOT BE DISMISSED BECAUSE IT CONTAINS
UNEXHAUSTED CLAIMS

On July 8, 2015, petitioner Arthur Frank Torres (“Petitioner”), a California state prisoner,
filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) pursuant to
28 U.S.C. § 2254. ECF No. 1. Having reviewed the Petition, the Court finds that it is subject to
dismissal because, as Petitioner admits, two of his seven claims are unexhausted. See Petition at
5-1 and 5-2.
Petitioner is reminded that a state prisoner must exhaust his state court remedies before a
federal court may consider granting habeas relief. See 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 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. That is, he must present his claims to the highest
state court with jurisdiction to consider it or demonstrate that no state remedy remains available.
See Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc). Including unexhausted
claims in a habeas petition renders it mixed and subject to dismissal without prejudice. See Rose
v. Lundy, 455 U.S. 509, 522, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.:
Title:

CV 15-5159 RT (RAO)
Arthur Frank Torres v. Raymond Madden

Date:

July 20, 2015

Here, Petitioner admits that Grounds Five and Six of the Petition are unexhausted as they
are presently before the California Supreme Court. Appellate Courts Case Information for Case
No. S226929, available at http://appellatecases.courtinfo.ca.gov; see also Petition at 3, 5-1, 5-2.
Accordingly, the Petition is subject to dismissal and Petitioner has four available options:
Option 1: Petitioner may request a voluntary dismissal of this action without prejudice
pursuant to Federal Rule of Civil Procedure 41(a). A Notice of Dismissal form is attached for
Petitioner’s convenience. Petitioner is advised that any dismissed claims may be later subject
to the statute of limitation under 28 U.S.C. § 2244(d)(1), as amended, which provides that “[a] 1year period of limitations shall apply to an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court.”
Option 2: Petitioner may request a voluntary dismissal of his unexhausted claims and
elect to proceed only on his exhausted claims. Petitioner may also use the attached Notice of
Dismissal form in order to select this option. Petitioner is advised that if he elects to proceed
with his exhausted claims, any future habeas petition containing his unexhausted claims or other
claims which could have been raised in the instant Petition may be rejected as successive.
Option 3: Under Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440
(2005), the Court is empowered to stay the claims in a “mixed” petition while Petitioner returns
to the state courts to exhaust his already pleaded, but unexhausted claims. See Rhines, 544 U.S.
at 277-78. To obtain a stay pursuant to Rhines, Petitioner is required to make a showing of good
cause for his failure to have exhausted all of his claims in state court, and that the claims are not
“plainly meritless.” See id.
Option 4: Under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), Petitioner would have to
dismiss any unexhausted claims, but the court would be empowered to stay his remaining fully
exhausted claims while he returned to the state courts to exhausted his dismissed claims. Kelly,
315 F.3d at 1070-71. Petitioner is warned that “[a] petitioner seeking to use the Kelly procedure
will be able to amend his unexhausted claims back into his federal petition once he has exhausted
them only if those claims are determined to be timely … [a]nd demonstrating timeliness will
often be problematic under the now-applicable legal principles.” King v. Ryan, 564 F.3d 1133,
///

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.:
Title:

CV 15-5159 RT (RAO)
Arthur Frank Torres v. Raymond Madden

Date:

July 20, 2015

1140-41 (9th Cir. 2009). Additionally, Petitioner may only amend a new claim into a pending
federal habeas petition after the expiration of the limitations period if the new claim shares a
“common core of operative facts” with the claims in the pending petition. Mayle v. Felix, 545
U.S. 644, 659, 125 S. Ct. 2562, 162 L. Ed. 2d 582 (2005).
In sum, the Court ORDERS Petitioner to respond to this Order by August 3, 2015 and
indicate which of the four options he wishes to pursue. In order to select Options One or Two,
Petitioner may use the attached Notice of Dismissal form and fill it our according to his choice.
In order to select Options Three or Four, Petitioner must file a declaration, signed under penalty
of perjury, requesting a stay pursuant to either Rhines or Kelly. If Petitioner wishes to obtain a
stay pursuant to Rhines, he must also set forth good cause for his failure to have exhausted his
claims and that the claims are not plainly meritless.
Petitioner is expressly warned that failure to timely file a declaration or other
response to this Order will result in a recommendation that this action be dismissed with
prejudice for his failure to prosecute and obey Court orders pursuant to Federal Rule of
Civil Procedure 41(b). Petitioner is further warned that if he does not select one of the four
options to address the fact that his Petition contains unexhausted claims, the Petition will be
subject to dismissal as mixed.
The Clerk of the Court is directed to serve a copy of this Order upon Petitioner as his
current address of record.
IT IS SO ORDERED.

Initials of Preparer

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