Vernell Cephus v. Donald S. Kennedy

Filing 5

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 fully unexhausted petition. Petitioner must file a response to this Order withing twenty (20) days of the date of this Order (by no later than March 27, 2017). (Attachments: # 1 Courts February 1, 2017 Minute Order) (afe)

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

Case No.

CV 17-00638-PA (AS)

Title

February 1, 2017

Cephus, Vernell v. Donald, S. Kennedy

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

On January 26, 2017, Vernell Cephus (“Petitioner”), a prisoner proceeding pro se,
filed a Petition for Writ of Habeas Corpus (“Petition”). (Docket Entry No. 1). The Petition
asserts the following ground for federal habeas relief: (1) “[T]he Municipal Court had no
jurisdiction to act on defendant’s case more than three years.”; and (2) “They have no right
to hold me over 3 years.” (Petition at 5-6).
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).
Here, as Petitioner concedes (see Petition at 5-6), he has failed to present both
Grounds alleged in the Petition to the California Supreme Court. See also
http://appellatecases.courtinfo.ca.gov [last visited January 31, 2017]). Therefore, the
Petition is totally unexhausted, subject to dismissal.

CV-90 (10/08)

CIVIL MINUTES - GENERAL

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

Case No.

CV 17-00638-PA (AS)

Title

February 1, 2017

Cephus, Vernell v. Donald, S. Kennedy

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.1 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, a district court has the authority to stay and hold in abeyance a totally
unexhausted habeas corpus petition. See Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016)
(“In sum, we hold that a district court has the discretion to stay and hold in abeyance fully
unexhausted petitions under the circumstances set forth in Rhines [v. Weber, 544 U.S. 269
(2005)].”). Under Rhines, 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.
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, or he may request a stay of the Petition under Rhines.
Thus, Petitioner has the following two options:
Option 1: Petitioner may request a voluntary dismissal of this action without
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).
1

CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 2 of 3

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

Case No.

CV 17-00638-PA (AS)

Title

February 1, 2017

Cephus, Vernell v. Donald, S. Kennedy

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 Order (by no later than February 21,
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 file a motion for a stay, pursuant to Rhines, 544 U.S. at
277-78, seeking a stay of the Petition while he returns to the state courts to exhaust
unexhausted claims. 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,2 within
20 days of the date of this Order (by no later than February 21, 2017).
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 two options
within the time frames specified above, the Petition will be subject to dismissal as fully
unexhausted.
0
Initials of
Preparer

:

0

AF

2

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.
CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 3 of 3

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)