Kyung Hwan Choi v. David Long

Filing 20

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 withing twenty (20) days (by no later than March 27, 2017). (See Order for complete details) (Attachments: # 1 Courts December 20, 2016 Order) (afe)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

Case No.

CV 16-06817-JVS (AS)

Title

December 20, 2016

Kyung Hwan Choi v. David Long, Warden

Present: The
Honorable

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) ORDER RE THREE OPTIONS

On September 12, 2016, Kyung Hwan Choi (“Petitioner”), a California state prisoner
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). The Petition asserts the
following grounds for federal habeas relief:
(1) “The Trial Court’s failure to Give a Unanimity Instruction as to The Conspiracy
Charge Violated petitioner’s Federal Due Process Rights;”
(2) “Petitioner was denied Due Process of Law because the evidence was insufficient
to support conviction of conspiracy and burglary;”
(3) “The Trial court’s failure to adequately instruct the jury on the natural and
probable consequences doctrine violated Petitioner’s Federal Due Process Rights;”
and
(4) Petitioner is actually innocent based on “newly discovered evidence,”
specifically, sworn affidavits of multiple individual(s) who “have been convicted of
the charged offenses” and who “are now willing to exonerate Petitioner of the crimes
“Petitioner never committed.” (Petition at 6-12).
On December 16, 2016, Respondent filed a Motion to Dismiss the Petition (“Motion
to Dismiss”) (Docket Entry No. 15), contending that Ground Four alleged in the Petition
is unexhausted because Petitioner has failed to present Ground Four to the California

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

CV 16-06817-JVS (AS)

Title

Date

December 20, 2016

Kyung Hwan Choi v. David Long, Warden

Supreme Court. (See Motion to Dismiss at 5–7).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
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). The fair presentation requirement is not met if the
state’s highest court does not reach the merits of a claim due to the procedural context in
which it was presented. See Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994)
(“Submitting a new claim to the state’s highest court in a procedural context in which its
merits will not be considered absent special circumstances does not constitute fair
presentation.”) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)); Harris v. Superior
Court, 500 F.2d 1124, 1126–28 (9th Cir. 1974) (a claim denied by state’s highest court as
procedurally deficient, either explicitly or by citation of authority, does not exhaust the
claim).
As Petitioner concedes (see Petition at 11-12), Ground Four of the Petition has not
been presented to the California Supreme Court (see Respondent’s Notice of Lodging
[“Lodgment”] No. 3); see also http://appellatecases.courtinfo.ca.gov [last visited December
19, 2016]), and consequently is unexhausted.
Therefore, Petitioner has put forth an unexhausted claim that makes his Petition 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
1

An Opposition or Notice of Non-Opposition to the Motion to Dismiss (see
Docket Entry No. 4 at 4) is not necessary, since Petitioner has conceded that Ground Four
alleged in the Petition is unexhausted (see Petition at 11-12).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 16-06817-JVS (AS)

Title

Date

December 20, 2016

Kyung Hwan Choi v. David Long, Warden

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. However,
Petitioner is cautioned 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
limitations during the pendency of “a properly filed application for State post-conviction
or other collateral review,” the statute of limitations will not be 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.
However, since the Court has already issued an Order Denying Stay of the Petition
(see Docket Entry Nos. 3, 7 [Order Denying Petitioner’s Motion for Reconsideration of the
Order Denying Stay of the Petition]), a stay of the Petition under Rhines is not available to
Petitioner.
Although 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 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).
2

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

CV 16-06817-JVS (AS)

Title

Date

December 20, 2016

Kyung Hwan Choi v. David Long, Warden

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(s), the newly exhausted (and possibly otherwise time-barred)
claim(s) must “share[ ] a ‘common core of operative facts’ with the [exhausted] claims in
the pending petition.” King, 546 F.3d at 1141 (quoting Mayle v. Felix, 545 U.S. 644, 659
(2005)). 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; dismiss the unexhausted claim (Ground Four) and proceed
on only the exhausted claims (Grounds One through Three); or request a stay, under Kelly,
of his fully exhausted claims pending the exhaustion of the unexhausted claim.
Thus, Petitioner has the following three 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
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 16-06817-JVS (AS)

Title

Date

December 20, 2016

Kyung Hwan Choi v. David Long, Warden

January 10, 2017). 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 (Ground Four), as identified above, and elect to proceed on only the
exhausted claims (Grounds One through Three). If Petitioner elects this option, he must file
a notice of withdrawal of the unexhausted claim alleged in the Petition (Ground Four), as
identified above, within 20 days of the date of this Minute Order (by no later than January
10, 2017). Petitioner is advised that if he elects to proceed solely with the exhausted claims
(Grounds One through Three), the Court will not later rule on the unexhausted claim alleged
in the Petition (Ground Four), 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 (Grounds One through Three),
any future habeas petition containing his unexhausted claimsor other claims that could have
been raised in the instant Petition (but were not) may be rejected as successive.
Option 3: Petitioner may dismiss the unexhausted claim alleged in the Petition
(Ground Four), as identified above, and, pursuant to Kelly, 315 F.3d at 1063, file a motion
seeking a stay of his remaining exhausted claims while Petitioner returns to the state courts
to exhaust the dismissed claims. If Petitioner elects this option, he must file a declaration,
signed under penalty of perjury, selecting a stay pursuant to Kelly,3 within 20 days of the
date of this Minute Order (by January 10, 2017). 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 claims only if the exhausted claims (Grounds One through
Three) in the Petition are timely and the newly exhausted claim “relat[e] back” to the
exhausted claims in the Petition. King v. Ryan, 564 F.3d at 1140–41; Mayle v. Felix, 545
U.S. at 664.
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 claims raised therein.
3

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

Case No.

CV 16-06817-JVS (AS)

Title

December 20, 2016

Kyung Hwan Choi v. David Long, Warden

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
Procedure 41(b).
Petitioner is further warned that if he does not select one of the three 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

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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)