Eric L. Wright v. Tammy Campbel

Filing 7

MINUTES (IN CHAMBERS) ORDER TO SHOW CAUSE by Magistrate Judge Douglas F. McCormick: Here, if Petitioner seeks to pursue habeas relief in federal court, he must either amend the FAP to delete any unexhausted claim or file a formal motion requesting a stay and abeyance while he returns to state court to exhaust his unexhausted claim(s). IT THEREFORE IS ORDERED that within twenty-eight (28) days of the date of this Order, Petitioner shall do one of the following: (1) file additional documents to demonstrate that he has exhausted all claims asserted in the FAP; (2) file a Second Amended Petition deleting all unexhausted claim(s); (3) file a formal motion for stay-and-abeyance; or (4) request that the FAP be dismissed without prejudice under Federal Rule of Civil Procedure 41(a)(1), with the understanding that any later petition may be time barred under 28 U.S.C. § 2244(d)(1). [SEE DOCUMENT FOR FURTHER INFORMATION.] (es)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
order to show cause (Grounds One and Two); (ii) the jury instructions during trial, coupled with
the prosecutor’s arguments, “allowed the jury to convict [P]etitioner based on what is now a
legally invalid theory” (Grounds Three and Four); and (iii) the trial court violated Petitioner’s
Sixth and Fourteenth Amendment rights by conducting the hearing on his petition without him
personally present (Ground Five). See id. at 5-19.
Petitioner states in the FAP that “Ground 5 was not presented [to the California Supreme
Court]. The claim has not been exhausted.” Id. at 7. This is a problem. Under 28 U.S.C.
§ 2254(b), federal habeas relief may not be granted unless a petitioner has exhausted the remedies
available in state court. Exhaustion requires that the petitioner’s contentions be fairly presented to
the state courts, see Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011), and disposed of on
the merits by the highest court of the state, see Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir.
2002). A claim has not been fairly presented unless the prisoner has described in the state-court
proceedings both the operative facts and the federal legal theory on which his claim is
based. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam).
A federal court may raise a habeas petitioner’s failure to exhaust state remedies sua sponte.
See Stone v. City and County of San Francisco, 968 F.2d 850, 855-56 (9th Cir. 1992) (as
amended). The petitioner has the burden of demonstrating he has exhausted available state
remedies. See Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972) (per curiam). Further, as a
matter of comity, a federal court will not entertain a habeas petition unless the petitioner has
exhausted the available state judicial remedies on every ground presented in it. See Rose v.
Lundy, 455 U.S. 509, 518-19 (1982).
Here, it is clear from the face of the FAP that Ground Five has not been exhausted. See
FAP at 7. The Court must dismiss a habeas petition that contain both exhausted and
unexhausted claims. See Rose, 455 U.S. at 522. However, before the Court dismisses a mixed
petition, Petitioner must “be offered leave to amend the petition to delete any unexhausted claims
and to proceed on the exhausted claims.” Henderson v. Johnson, 710 F.3d 872, 873 (9th Cir.
2013).
Alternatively, Petitioner may file a formal motion to stay this case and hold it in abeyance
while he returns to state court to exhaust his unexhausted claim(s). In Rhines v. Weber, 544 U.S.
269, 277 (2005), the Supreme Court held that, in certain “limited circumstances,” a district court
may stay a mixed petition and hold it in abeyance while the petitioner returns to state court to
exhaust his unexhausted claims. The prerequisites for obtaining a stay under Rhines while the
petitioner exhausts his state remedies are: (1) that the petitioner show good cause for his failure to
exhaust his claims first in state court; (2) that the unexhausted claims not be “plainly meritless”;
and (3) that petitioner not have engaged in “abusive litigation tactics or intentional delay.” 554
U.S. at 277-78. The Supreme Court has not precisely defined what constitutes “good cause” for a
Rhines stay. See Blake v. Baker, 745 F.3d 977, 980-81 (9th Cir. 2014). The Ninth Circuit has
found that “good cause” does not require “extraordinary circumstances.” Dixon v. Baker, 847
F.3d 714, 720 (9th Cir. 2017). Rather, “good cause turns on whether the petitioner can set forth a
CV-90 (12/02)

CIVIL MINUTES-GENERAL

Initials of Deputy Clerk: nb

Page 2 of 3

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
reasonable excuse, supported by sufficient evidence, to justify” the failure to exhaust. Blake, 745
F.3d at 982.2
Here, if Petitioner seeks to pursue habeas relief in federal court, he must either amend the
FAP to delete any unexhausted claim or file a formal motion requesting a stay and abeyance
while he returns to state court to exhaust his unexhausted claim(s). IT THEREFORE IS
ORDERED that within twenty-eight (28) days of the date of this Order, Petitioner shall do
one of the following: (1) file additional documents to demonstrate that he has exhausted all
claims asserted in the FAP; (2) file a Second Amended Petition deleting all unexhausted
claim(s); (3) file a formal motion for stay-and-abeyance; or (4) request that the FAP be
dismissed without prejudice under Federal Rule of Civil Procedure 41(a)(1), with the
understanding that any later petition may be time barred under 28 U.S.C. § 2244(d)(1).3
Petitioner is warned that his failure to timely respond to this Order will result in a
recommendation that this action be dismissed without prejudice for failure to prosecute. See Fed.
R. Civ. P. 41(b).

Petitioner also may request a stay and abeyance under Kelly v. Small,315 F.3d 1063 (9th
Cir. 2003), which grants the Court discretion to permit Petitioner to withdraw his unexhausted
claims and then stay the exhausted claims while he exhausts the unexhausted claims in state
court. See id. at 1070-71. Under the Kelly procedure:
2

(1) a petitioner amends his petition to delete any unexhausted claims;
(2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing
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 newly-exhausted claims to the
original petition.
King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). Under Kelly, Petitioner is not required to
show good cause for failure to exhaust. See id. However, the newly-exhausted claims may only
be re-attached to the original petition if the claims are timely or if they “relate back” to the
exhausted claims. See id. at 1040-41.
Separately, the Court has concerns as to whether Grounds One through Four are
cognizable on federal habeas review, as they pertain solely to the state court’s interpretation and
application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the
province of a federal habeas corpus court to reexamine state-court determinations on state-law
questions”); Walker v. California Supreme Court, No. 22-4638, 2022 WL 11337927, at *2 (C.D.
Cal. Sept. 13, 2022) (collecting cases holding that California state court’s allegedly wrongful
denial of a resentencing petition under Cal. Penal Code § 1170.95 does not raise an issue
cognizable on federal habeas review). However, for purposes of this screening order, the Court
does not reach this issue.
3

CV-90 (12/02)

CIVIL MINUTES-GENERAL

Initials of Deputy Clerk: nb

Page 3 of 3