Jose A. Barrios v. Warren L. Montgomery

Filing 49

ORDER TO SHOW CAUSE by Magistrate Judge Alka Sagar. Petitioner is HEREBY ORDERED TO SHOW CAUSE why this action should not be dismissed as a mixed petition, pursuant to Rose v. Lundy, 455 U.S. 509, 522 (1982). Petitioner must file a response to this Order within twenty (20) days of the date of thisOrder (by no later than August 24, 2017). (See Order for complete details) (Attachments: # 1 Courts July 25, 2016 Minute Order) (afe)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-7868-BRO (AS)

Title

Jose A. Barrios v. Warren L. Montgomery, Warden

Present: The Honorable

Date

July 25, 2016

Alka Sagar, United States Magistrate Judge

Alma Felix

N/A

Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

N/A

N/A

Proceedings:

(IN CHAMBERS)

On October 7, 2015, Jose A. Barrios (“Petitioner”), proceeding pro se, filed a
Petition for Writ of Habeas Corpus by a Person in State Custody, pursuant to 28 U.S.C. §
2254 (“Petition”). (Docket Entry No. 1).
On April 21, 2016, Respondent filed a Motion to Dismiss the Petition, contending
that Ground Two of the Petition (alleging that Petitioner received ineffective assistance
of counsel based on his trial counsel’s “failure to object to irrelevant drug use admitted
evidence”, see Petition at 5, Attachment at 5c) is unexhausted and therefore the Petition
is a “mixed petition.” (Docket Entry No. 20).
On July 22, 2016, Petitioner filed an Opposition to the Motion to Dismiss the
Petition (“Opposition”). (Docket Entry No. 25).1
A state prisoner must exhaust his 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 (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 petitioner’s federal rights.
Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam). A petitioner must present his

Petitioner’s filing of the Opposition DISCHARGES the Order to Show
Cause issued on June 30, 2016. (See Docket Entry No. 24).
1

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-7868-BRO (AS)

Date

Title

July 25, 2016

Jose A. Barrios v. Warren L. Montgomery, Warden

claims to the highest court with jurisdiction to consider them (typically the state
supreme court), or demonstrate that no state remedy is available. See Peterson v. Lampert,
319 F.3d 1153, 1156 (9th Cir. 2003) (en banc).
Although Petitioner contends he alleged a claim corresponding to Ground Two of
the instant Petition in his Petition for Review to the California Supreme Court (see
Opposition, citing Respondent’s Notice of Lodgment No. 7 at 18 [“Trial Counsel Provided
Ineffective Assistance of Counsel by Failing to Make Sufficient Objections to Preserve All
the Changes Raised on Appeal”], the ineffective assistance of trial counsel claim raised in
the Petition for Review does not correspond to Ground Two of the Petition. Rather, that
claim alleged that Petitioner’s trial counsel was ineffective for failing to raise on appeal
certain claims, which did not include a claim concerning the admission of evidence of drug
use. (See Lodgment No. 7 at 19-22, No. 6 at 9-10, 17 [portions of the California Court of
Appeal Opinion to which Petitioner cited in his Petition for Review] ).
It appears to the Court that Ground Two of the Petition has not been presented to the
California Supreme Court (see Lodgment No. 7), and is consequently unexhausted.
Therefore, Petitioner has put forth unexhausted claims that make his Petition, on its face,
a mixed petition, subject to dismissal. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (“In
sum, because a total exhaustion rule promotes comity and does not unreasonably impair the
prisoner’s right to relief, we hold that a district court must dismiss habeas petitions
containing both unexhausted and exhausted claims.”). Yet, a court may not dismiss a
mixed petition without first providing the petitioner the opportunity to amend the pleading
to delete any unexhausted claims. Jefferson v. Budge, 419 F.3d 1013, 1015-16 (9th Cir.
2005) (citing, inter alia, Rose, 455 U.S. at 510).
Petitioner may request a dismissal of the entire Petition without prejudice. The Court
observes, however, that dismissal of the present proceeding (even dismissal “without
prejudice”) might contribute toward a statute of limitations bar against a federal petition
subsequently filed by Petitioner.2 Although 28 U.S.C. § 2244(d)(2) tolls the statute of
The statute of limitations is also subject to equitable tolling “in appropriate
cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). This Court need not and does not
now determine whether equitable tolling might apply with respect to a federal petition that
Petitioner subsequently might file. Nor does the Court express any opinion concerning the
merits of any petition that Petitioner may file in the California Supreme Court, noting that
2

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-7868-BRO (AS)

Date

Title

July 25, 2016

Jose A. Barrios v. Warren L. Montgomery, Warden

limitations during the pendency of “a properly filed application for State post-conviction
or other collateral review,” the statute of limitations would not have been tolled during the
pendency of the instant Petition. See Duncan v. Walker, 533 U.S. 167, 181–82 (2001).
Additionally, in “limited circumstances,” a district court has discretion to stay and
hold in abeyance a mixed habeas corpus petition pending exhaustion of state remedies.
Rhines v. Weber, 544 U.S. 269, 277-78 (2005). Stay and abeyance is “only appropriate
when the district court determines there was good cause for the petitioner’s failure to
exhaust his claims first in state court.” Id. at 277; see also Jackson v. Roe, 425 F.3d 654,
660-61 (9th Cir. 2005). Under Rhines, “it likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause
for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is
no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines,
544 U.S. at 278.
Prior to Rhines, in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002), overruled on other
grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007) (“Kelly”), the Ninth Circuit
held that a district court has discretion to allow a petitioner to amend a mixed petition to
delete any unexhausted claims, stay the fully exhausted petition pending exhaustion of the
unexhausted claims, and then allow the petitioner to amend the petition to include the
newly exhausted claims. See id. at 1070-71; see also Olvera v. Giurbino, 371 F.3d 569,
573-74 (9th Cir. 2004). In King v. Ryan, 564 F.3d 1133 (9th Cir. 2009), the Ninth Circuit
held that the Kelly procedure remains an option after Rhines, and that the propriety of a
Kelly stay does not depend on a showing of good cause for the failure to exhaust. Id. at
1143. A Kelly stay “is particularly appropriate when an outright dismissal will render it
unlikely or impossible for the petitioner to return to federal court within the one-year
limitation period imposed by [28 U.S.C. § 2244(d)].” Kelly, 315 F.3d at 1070. However,
a petitioner’s invocation of Kelly is subject to the requirement that once the petitioner has
fairly presented his now exhausted claim, that newly exhausted (and possibly otherwise
time-barred) claim must “share[ ] a ‘common core of operative facts’ with the claims in the
pending petition.” King, 546 F.3d at 1141 (quoting Mayle v. Felix, 545 U.S. 644, 659
even if there exists an applicable state procedural bar, the California Supreme Court
nevertheless might choose to reach the merits of Petitioner’s claims. See, e.g., Park v.
California, 202 F.3d 1146, 1153-54 (9th Cir. 2000).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-7868-BRO (AS)

Date

Title

July 25, 2016

Jose A. Barrios v. Warren L. Montgomery, Warden

(2005)). However, a claim in an amended petition does not relate back “when it asserts a
new ground for relief supported by facts that differ in both time and type from those the
original pleading set forth.” Hebner v. McGrath, 543 F.3d 1133, 1138 (9th Cir. 2008); see
Mayle, 545 U.S. at 660-61.
Accordingly, the Court will afford Petitioner the opportunity to address the defects
discussed herein which preclude the consideration of the Petition by the Court. He may
voluntarily dismiss the Petition; he may dismiss the exhausted claim and proceed on only
the exhausted claims; or he may request a stay of the mixed Petition under Rhines, or
request a stay, under Kelly, of his fully exhausted claims pending the exhaustion of the
unexhausted claim.
Thus, Petitioner has the following four 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. If Petitioner elects this option, he must file the
Notice of Dismissal within 20 days of the date of this Minute Order (by no later than
August 15, 2016). Petitioner is advised that any dismissed claims may later be subject to
the statute of limitations under 28 U.S.C. § 2244(d)(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.”
Option 2: Petitioner may request a voluntary dismissal of the unexhausted claim
alleged in the Petition, as identified above, and elect to proceed on only the exhausted
claims. If Petitioner elects this option, he must file a notice of withdrawal of the
unexhausted claim alleged in the Petition, as identified above, within 20 days of the date
of this Minute Order (by no later than August 15, 2016). Petitioner is advised that if he
elects to proceed solely with the exhausted claims, the Court will not later rule on the
unexhausted claim alleged in the Petition, as identified above, even if Petitioner
subsequently does exhaust that issue in review by the California Supreme Court. Petitioner
is further advised that if he elects to proceed solely with the exhausted claims, any future
habeas petition containing his unexhausted claim or other claims that could have been
raised in the instant Petition (but were not) may be rejected as successive.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-7868-BRO (AS)

Date

Title

July 25, 2016

Jose A. Barrios v. Warren L. Montgomery, Warden

Option 3: Petitioner may file a motion for a stay, pursuant to Rhines, supra, seeking
a stay of the exhausted claims while he returns to the state courts to exhaust the
unexhausted claim in his Petition, as identified above. 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. If
Petitioner elects this option, he must file a declaration, signed under penalty of perjury,
selecting a stay pursuant to Rhines,3 within 20 days of the date of this Minute Order (by no
later than August 15, 2016). (In the motion, Petitioner should select a backup option, in
the event the Court finds that Petitioner has failed to establish good cause for his failure to
exhaust the unexhausted claim alleged in the Petition, as identified above.)
Option 4: Petitioner may dismiss the unexhausted claim alleged in the Petition, as
identified above, and, pursuant to Kelly v. Small, supra, file a motion seeking a stay of his
remaining exhausted claims while Petitioner returns to the state courts to exhaust the
dismissed claim. If Petitioner elects this option, he must file a declaration, signed under
penalty of perjury, selecting a stay pursuant to Kelly,4 within 20 days of the date of this
Minute Order (by August 15, 2016). Petitioner is warned, however, that after he has
exhausted the unexhausted claim in state court, he will be able to amend his Petition to add
the newly exhausted claim only if the exhausted claims in the Petition are timely and the
newly exhausted claim “relat[es] back” to the exhausted claims in the Petition. King v.
Ryan, supra, 564 F.3d at 1140-41; Mayle v. Felix, supra, 545 U.S. at 664.
Petitioner is expressly warned that failure to timely file a response to this
ORDER may result in a recommendation that this action be dismissed with prejudice
for his failure to prosecute and/or obey Court orders pursuant to Federal Rule of Civil
The Court expresses no view regarding whether Petitioner would be entitled
to a stay under the standards set forth in Rhines. The Court also expresses no view
regarding the timeliness of the Petition or the merits of the claim raised therein.
3

The Court expresses no view regarding whether Petitioner would be entitled
to a stay under the standards set forth in Kelly. The Court also expresses no view regarding
the timeliness of the Petition or the merits of the claim raised therein.
4

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-7868-BRO (AS)

Date

Title

July 25, 2016

Jose A. Barrios v. Warren L. Montgomery, Warden

Procedure 41(b).
Petitioner is further warned that if he does not select one of the four options
within the time frames specified above, the Petition will be subject to dismissal as
mixed.

0
Initials of
Preparer

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:

0

AF

Page 6 of 6

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CASE NUMBER

Plaintiff(s),

v.

Defendant(s).

NOTICE OF DISMISSAL PURSUANT
TO FEDERAL RULES OF CIVIL
PROCEDURE 41(a) or (c)

PLEASE TAKE NOTICE: (Check one)
G This action is dismissed by the Plaintiff(s) in its entirety.
G The Counterclaim brought by Claimant(s)
dismissed by Claimant(s) in its entirety.

is

G The Cross-Claim brought by Claimants(s)
dismissed by the Claimant(s) in its entirety.

is

G The Third-party Claim brought by Claimant(s)
dismissed by the Claimant(s) in its entirety.

is

G ONLY Defendant(s)
is/are dismissed from (check one) G Complaint, G Counterclaim, G Cross-claim, G Third-Party Claim
brought by

.

The dismissal is made pursuant to F.R.Civ.P. 41(a) or (c).

Date

Signature of Attorney/Party

NOTE: F.R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for
summary judgment, whichever first occurs.
F.R.Civ.P. 41(c): Counterclaims, cross-claims & third-party claims may be dismissed before service of a responsive
pleading or prior to the beginning of trial.

CV-09 (03/10)

NOTICE OF DISMISSAL PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 41(a) or (c)