Aristides Argueta Gutierrez v. Scott Fraunheim

Filing 7

ORDER TO SHOW CAUSE by Magistrate Judge Shashi H. Kewalramani.The Court hereby issues this Order to Show Cause why the Petition shouldnot be dismissed, and specifically orders Petitioner to respond to the Order to Show Cause in writing no later than October 29, 2017. The Court further directs Petitioner to review the information that follows, which provides additional explanation as to why the federal Petition appears to be subject to dismissal and may assist Petitioner in determining how to respond. (Attachments: # 1 Blank Petition) (dc)

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

CV 17-03003-ODW (SHK)

Date: September 29, 2017

Title: Aristides Argueta Gutierrez v. Fraunheim

Present: The Honorable Shashi H. Kewalramani, United States Magistrate Judge
D. CASTELLANOS

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Petitioner:

Attorney(s) Present for Respondent:

None Present

None Present

Proceedings:

(In Chambers) Order To Show Cause Why This Action Should Not Be
Dismissed, Or, Alternatively, If Petitioner Is Seeking For This Matter to Be
Stayed With Respect To All The Grounds (Rhines) Or Just Some Of The
Grounds (Kelly)
I. INTRODUCTION

On April 14, 2017, Petitioner, an inmate at Pleasant Valley California State Prison
(“PVSP”) proceeding pro se, constructively filed1 a Petition pursuant to Title 28 of the United
States Code, section 2254. Electronic Case Filing Number (“ECF No.”) 1, Petition (“Pet.”).
Petitioner challenges his 2014 conviction in the Los Angeles County Superior Court for various
violations of California Penal Codes §§ 269(a)(3), 288(a), and 288(b)(1). Id. at 2. The Petition
sets forth five grounds for habeas relief: (1) the prosecutor failed to provide required notes and
oral statements made by the victim (“Claim One”); (2) the court erred in excluding particular
evidence (“Claim Two”); (3) the court failed to instruct the jury on unanimity (“Claim
Three”); (4) improper prosecutorial argument (“Claim Four”); and (5) improper admission of
1

Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to
mail to court, the Court deems the pleading constructively filed on the date it is signed. Roberts
v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted). Here, Petitioner signed the
Petition on April 14, 2017. ECF No. 1, Pet. at 8. Thus, the Court deems April 14, 2017 to be the
Petition’s filing date.
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petitioners statements obtained in violation of Miranda and failure to raise this appellate claim
based on ineffective assistance of counsel (“Claim Five”). See id., Pet. Petitioner acknowledges
Claim Five is unexhausted and indicated that he intends to submit this claim to the California
Supreme Court. Id., Pet. at 7. Petitioner also requests a “stay and abeyance” based on this
unexhausted Claim Five. Id.
Because the Petition contains, admittedly, an unexhausted claim, the Petition appears
subject to dismissal. Specifically, Petitioner has not exhausted his state remedies with respect to
Claim Five. The Court will not make a final determination regarding whether the federal Petition
should be dismissed, however, without giving Petitioner an opportunity to address this issue and
to allow Petitioner to file a more detailed request for “stay and abeyance” or one of the other
alternatives set out below.
Accordingly, the Court hereby issues this Order to Show Cause why the Petition should
not be dismissed, and specifically orders Petitioner to respond to the Order to Show Cause in
writing no later than October 29, 2017. The Court further directs Petitioner to review the
information that follows, which provides additional explanation as to why the federal Petition
appears to be subject to dismissal and may assist Petitioner in determining how to respond.
II. THE PETITION IS A MIXED PETITION SUBJECT TO DISMISSAL
A state prisoner must exhaust his or her 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 or her 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 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.
For a petitioner in California state custody, this generally means the petitioner must have
fairly presented his or her claims in a petition to the California Supreme Court. See id.
(interpreting 28 U.S.C. § 2254(c)); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999)
(applying O’Sullivan to California). A claim has been fairly presented if the petitioner has both
“adequately described the factual basis for [the] claim” and “identified the federal legal basis for
[the] claim.” Gatlin, 189 F.3d at 888.
The inclusion of both exhausted and unexhausted claims in a habeas petition renders it
mixed and subject to dismissal without prejudice. 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.”).

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Here, in his Petition, Petitioner concedes that he “will be presenting the ground [in Claim
Five] to the State Supreme Court.” ECF No. 1, Pet. at 7. Therefore, it appears the California
Supreme Court has not ruled on Claim Five, and thus that claim has not been exhausted. If this
is correct, the Petition is a mixed petition and subject to dismissal without prejudice. See Rose,
455 U.S. at 522.
III. PETITIONER’S OPTIONS
Option 1 - Petitioner May Attempt To Show That Claim Five Is Exhausted: If
Petitioner contends he has in fact exhausted his state court remedies on Claim Five, he should
clearly explain this in a written response to this Order. Petitioner should attach to his response
copies of any documents establishing that Claim Five is indeed exhausted. Petitioner may also
file a response, and include a notice that, if the Court still finds Claim Five to be unexhausted, he
alternatively selects one of the other options discussed below.
Option 2 - Petitioner May Proceed Only On Exhausted Claims One Through Four:
Petitioner may file a First Amended Petition that includes only exhausted Claims One through
Four. The Court advises Petitioner that if he elects to proceed now with only his exhausted
claims, any future habeas petitions containing Claim Five, or other claims that could have been
raised in the instant Petition may be rejected as successive or may be time-barred.
Option 3 - Petitioner May Request A Rhines Stay: Petitioner may file a Motion for a
Rhines Stay pursuant to Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (“Rhines Stay”).
Pursuant to Rhines, Petitioner may ask the Court to stay all of the claims in a mixed petition
while he returns to the state courts to exhaust his already pled but unexhausted claim. To obtain
a stay of this case pursuant to Rhines, Petitioner is required to: (i) show good cause for his failure
to exhaust Claim Five in state court earlier; and (ii) show that Claim Five is not “plainly
meritless.” See id. at 277. Petitioner should include any evidence available in support of his
request for a Rhines Stay.
If the Court denies Petitioner’s Motion for a Rhines Stay, the Petition will be dismissed
because it is a mixed petition containing both exhausted and unexhausted claims. However,
Petitioner may also include in the Motion a notice that, if the Court denies Petitioner’s Motion
for a Rhines Stay, he alternatively selects one of the other options.
Option 4 - Petitioner May Request A Kelly Stay: Petitioner may file a Motion for a
Kelly Stay pursuant to Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003) (“Kelly Stay”).
Petitioner must attach to his Motion a copy of a proposed First Amended Petition that includes
only exhausted Claims One through Four, which the Court will file if the Court grants
Petitioner’s Motion for a Kelly Stay. Petitioner may also include in the Motion a notice that, if
the Court denies Petitioner’s Motion for a Kelly Stay, he alternatively selects one of the other
options.

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Pursuant to Kelly, 315 F.3d at 1063, if a petitioner dismisses a mixed petition’s
unexhausted claim, the court may stay the petition’s remaining exhausted claims to allow the
petitioner time to exhaust the unexhausted claim in state court. Id. at 1070-71. This is called a
“Kelly Stay.” Unlike a Rhines stay, a Kelly Stay “does not require that a petitioner show good
cause for his failure to exhaust state court remedies.” King v. Ryan, 564 F.3d 1133, 1135.
A Kelly Stay involves a three-step procedure: “(1) a petitioner amends his petition to
delete any unexhausted claims; (2) the court stays and hold in abeyance the amended, fully
exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust
the deleted claims; and (3) the petitioner later amends his petition and re-attaches the newlyexhausted claims to the original petition.” Id. (citing Kelly, 315 F.3d at 1170-71). Thus, while
“Rhines allows a district court to stay a mixed petition, and does not require that unexhausted
claims be dismissed while the petitioner attempts to exhaust them . . . Kelly allows the stay of
fully exhausted petitions, requiring that any unexhausted claims be dismissed.” Id. at 1139-40
(emphasis in original) (citing Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005)).
While a Kelly Stay does not require a showing of good cause, it requires compliance with
the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act.
28 U.S.C. § 2244(d)(1). “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.” King, 564 F.3d at 1140-41. After expiration of the
limitation period, “a petitioner may amend a new claim into a pending federal habeas petition . . .
only if the new claim shares a ‘common core of operative facts’ with the claims in the pending
petition; a new claim does not ‘relate back’ . . . simply because it arises from the ‘same trial,
conviction, or sentence.’” Id. at 1141 (internal citations omitted).
Petitioner may request a Kelly stay and follow the three-step procedure above. First,
Petitioner must file a First Amended Petition including only exhausted Claims One through Four
and deleting his unexhausted Claim Five. See id. at 1135. The Court will then stay and hold in
abeyance the fully exhausted First Amended Petition and allow Petitioner the opportunity to
exhaust the deleted Claim Five in state court. See id.
IV. ORDER
Petitioner is therefore ORDERED TO SHOW CAUSE why the Petition should not be
dismissed as a mixed petition by filing a written response no later than October 29, 2017.
Petitioner must respond to this Order pursuant to one of the options listed above.
1)
In order to select Option 1, Petitioner must file a response to this Order showing
why he believes that Claim Five is exhausted.
2)
In order to select Option 2, Petitioner must file a First Amended Petition that
includes only exhausted Claims One through Four.

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3)

In order to select Option 3, Petitioner must file a Motion for a Rhines Stay.

4)
In order to select Option 4, Petitioner must (a) file a Motion for a Kelly Stay, and
(b) attach a proposed First Amended Petition that includes only the exhausted Claims One
through Four
.
If Petitioner chooses Options 2 or 4, the First Amended Petition (a) must use the form
provided and write “First Amended” above the words “Petition for Writ of Habeas Corpus”;
and (b) must include the case number (CV 17-03003-ODW (SHK)) in the space provided on the
first page. Petitioner is advised that the First Amended Petition will supersede all preceding
petitions. After amendment, the Court will treat all previously filed petitions as nonexistent.
Therefore, the First Amended Petition must contain all claims Petitioner intends to present and
be complete without needing to refer to the Petition, or any other pleading, attachment, or
document. A copy of the Petition (ECF No. 1) and a blank petition for writ of habeas corpus
by a person in state custody form (CV-69) is attached for Petitioner’s convenience.
Caution: Petitioner is cautioned that if he requests a stay and the Court denies the
request for a stay, or if Petitioner contends that he has in fact exhausted his state court remedies
on all grounds and the Court disagrees, the Court will dismiss the Petition as a mixed petition.
Accordingly, Petitioner may select options in the alternative.
The Court expressly warns Petitioner that failure to timely file a response to this Order
will result in the Court dismissing this action with prejudice for his failure to comply with court
orders and failure to prosecute. See Fed. R. Civ. P. 41(b).
The Clerk of Court is directed to serve a copy of this Order on Petitioner at his
current address of record.
IT IS SO ORDERED.

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