John Vincent Lozano v. On Habeas Corpus
MINUTES (IN CHAMBERS) ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST AND FAILURE TO NAME PROPER RESPONDENT by Magistrate Judge Kenly Kiya Kato. Response to Order to Show Cause due by 11/30/2017. (dts)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CV 17-8091-DOC (KK)
Date: November 9, 2017
Title: John Vincent Lozano v. On Habeas Corpus
Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
Attorney(s) Present for Petitioner:
Attorney(s) Present for Respondent:
(In Chambers) Order To Show Cause Why This Action Should Not Be
Dismissed For Failure To Exhaust And Failure To Name Proper
On September 26, 2017, Petitioner John Vincent Lozano (“Petitioner”), an inmate at
Valley State Prison, proceeding pro se, constructively filed1 a Petition pursuant to 28 U.S.C. §
2254 (“Petition”) with no respondent named. See ECF Docket No. (“Dkt.”) 1, Petition.
Petitioner challenges his 2015 convictions in the Los Angeles County Superior Court for sodomy
by force and sodomy by anesthesia. Id. at 2. The Petition sets forth ten grounds for habeas relief:
(1) Ground One: Ineffective assistance of appellate counsel “for Failing to
Investigate and Raise Five Crucial additional Grounds of Ineffective Assistance of
Trial Counsel, and also Counsel on Appeal Failed to present Grounds of
Prosecutorial Misconduct which denied Petitioner a Fair Trial. Appellate
Counsel also Failed to raise Ground of Abuse of Trial Courts discretion in
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).
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(2) Ground Two: Ineffective assistance of trial counsel “for failing to investigate
crucial issues of victims Mental history and victims criminal acts for impeachment
purposes crucial to the Defense. Not to present Petitioners Roommates as
Witnesses for the Defense to prove she never screamed as she claimed and further
failed to request Mistrial when Prosecutor committed Misconduct and Trial
Counsel coerced Petitioner not to testify in his own behalf. In a He said She said
(3) Ground Three: Prosecutorial misconduct, improper vouching, and misstating
(4) Ground Four: “Abuse of Trial Courts Discretion During Motion For A New
(5) Ground Five: Denial of right to present a defense “when the Trial Court
refused to allow the Defense to present Expert Witness testimony”;
(6) Ground Six: Ineffective assistance of trial counsel “in his attempt to present
the Expert Testimony of Dr. Eisen”;
(7) Ground Seven: Ineffective assistance of trial counsel for failure to “have
requested an instruction on accident and argued it to the jury”;
(8) Ground Eight: Insufficient evidence of “more than one penetration”;
(9) Ground Nine: Insufficient evidence to support Count 1; and
(10) Ground Ten: Cumulative error.
See id. Petitioner acknowledges Claims One through Four are unexhausted. See id. at 20.
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, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (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, 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.
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.
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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, 102 S.
Ct. 1198, 71 L. Ed. 2d 379 (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.”).
Here, Petitioner concedes Claims One through Four have not been presented to the
California Supreme Court. Pet. at 20. Therefore, it appears the California Supreme Court has
not ruled on Claims One through Four, and thus those claims have 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.
THE PETITION FAILS TO NAME A PROPER RESPONDENT
“[T]he proper respondent to a habeas petition is ‘the person who has custody over [the
petitioner].’” Rumsfeld v. Padilla, 542 U.S. 426, 434, 124 S. Ct. 2711, 159 L. Ed. 2d 513 (2004)
(second alteration in original). Thus, “the default rule is that the proper respondent is the
warden of the facility where the prisoner is being held.” Id. at 435; see Stanley v. Cal. Supreme
Court, 21 F.3d 359, 360 (9th Cir. 1994) (as amended May 18, 1994) (holding the proper
respondent in a habeas action is “typically . . . the warden of the facility in which the petitioner is
incarcerated”); Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).
The Ninth Circuit has held that the “[f]ailure to name the correct respondent destroys personal
jurisdiction.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (as amended May 8,
Here, the Petition fails to name a respondent. See Pet. Accordingly, the Petition is
subject to dismissal without prejudice.
Therefore, the Petition appears subject to dismissal because, (a) as indicated in the
Petition, Petitioner has not exhausted his state remedies with respect to Claims One through
Four; and (b) Petitioner has not named his immediate custodian as a respondent. In addition,
while Petitioner appears to request a stay and abeyance of his Petition in order to exhaust his
state court remedies, he fails to identify the type of stay he seeks. The Court will not make a final
determination regarding whether the federal Petition should be dismissed, however, without
giving Petitioner an opportunity to address these issues.
Petitioner is therefore ORDERED TO SHOW CAUSE why the Petition should not be
dismissed for failure to exhaust state remedies and failure to name a proper respondent by filing a
written response no later than November 30, 2017. Petitioner must respond to this Order (a)
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pursuant to one or more of the options listed below; and (b) must file a request to amend the
Petition to name Petitioner’s “immediate custodian” as the respondent.
Option 1 - Petitioner May Explain Claims One through Four are Exhausted: If
Petitioner contends he has in fact exhausted his state court remedies on Claims One through
Four, he should clearly explain this in a written response to this Order. Petitioner should attach
to his response copies of any documents establishing that Claims One through Four are indeed
exhausted. Petitioner may also file a response, and include a notice that, if the Court still finds
Claims One through Four to be unexhausted, he alternatively selects one of the other options
Option 2 - Petitioner May Voluntarily Dismiss Claims One through Four And
Proceed Only On Exhausted Claims Five through Ten: If Petitioner wishes to proceed on the
exhausted Claims Five through Ten only, he may file a request to voluntarily dismiss 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 Claims One through Four, or other
claims that could have been raised in the instant Petition may be rejected as successive or may be
Option 3 - Petitioner May Request A Rhines Stay: Under Rhines v. Weber, 544 U.S.
269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005), a district court has discretion to stay a petition to
allow a petitioner time to present his unexhausted claims to state courts. Id. at 276; Mena v.
Long, 813 F.3d 907 (9th Cir. 2016) (holding the Rhines stay-and-abeyance procedure applies to
both mixed and fully unexhausted habeas petitions). This stay and abeyance procedure is called a
“Rhines stay” and is available only when: (1) there is “good cause” for the failure to exhaust; (2)
the unexhausted claims are not “plainly meritless”; and (3) the petitioner did not intentionally
engage in dilatory litigation tactics. Rhines, 544 U.S. at 277-78.
Petitioner may file a motion for a Rhines stay and support his request by showing: (1)
there is “good cause” for the failure to exhaust; (2) the grounds raised are not “plainly
meritless”; and (3) Petitioner did not intentionally engage in dilatory litigation tactics. See id.
Petitioner should include any evidence supporting his request for a Rhines stay.
Option 4 - Petitioner May Request A Kelly Stay: Under Kelly v. Small, 315 F.3d 1063,
1070-71 (9th Cir. 2003), if a petitioner dismisses a mixed petition’s unexhausted claims, the court
may stay the petition’s remaining exhausted claim to allow the petitioner time to exhaust the
unexhausted claims 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 (9th Cir. 2009).
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 newlyPage 4 of 5
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exhausted 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 (citation omitted).
Petitioner may file a motion for a Kelly stay and follow the three-step procedure above.
First, Petitioner must file a proposed notice voluntarily dismissing Claims One through Four.
See id. at 1135. The Court will then stay and hold in abeyance the fully exhausted Petition
containing only the exhausted Claims Five through Ten and allow Petitioner the opportunity to
exhaust the deleted Claims One through Four in state court. See id.
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 for failure to exhaust
state remedies. 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 without prejudice as a mixed petition
and for his failure to comply with court orders and failure to prosecute. See Fed. R. Civ. P.
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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