Jessie Lloyd Hall v. L.S. McEwen

Filing 5

MINUTE ORDER RE ORDER TO SHOW CAUSE by Magistrate Judge Margaret A. Nagle Response to Order to Show Cause due by 5/6/2011. (ec)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.: EDCV 11-00609-MMM (MAN)

Date: April 19, 2011

Title: Jesse Lloyd Hall v. L.S. McEwan
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DOCKET ENTRY:

ORDER TO SHOW CAUSE RE: POSSIBLE DISMISSAL FOR LACK OF EXHAUSTION

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PRESENT:
Hon. Margaret A. Nagle
Earlene Carson
Deputy Clerk
ATTORNEYS PRESENT FOR PETITIONER:

N/A

, United States Magistrate Judge
N/A
Court Reporter/Tape No.
ATTORNEYS PRESENT FOR RESPONDENTS:

N/A

PROCEEDINGS (In Chambers):
This action commenced on April 18, 2011, when Petitioner -- who is represented by counsel -- filed various
documents in support of a habeas petition pursuant to 28 U.S.C. § 2254 (“Petition”). Petitioner did not utilize the
Section 2254 habeas petition form approved for use in this district, in violation of Local Rule 83-16.2 and Rule 2(d)
of the Rules Governing Section 2254 Cases in the United States District Courts. The format of the documents he
submitted makes it difficult to ascertain the specific habeas claims he seeks to raise in this action. Based on the
arguments set forth in his Memorandum of Points and Authorities (“Pet. Mem.”), it appears that Petitioner raises
five separate habeas claims as follows:
Ground One:

A claim based on Petitioner’s asserted “actual innocence” and due process right to have his
convictions vacated and dismissed based on such innocence (Pet. Mem. at 20-22);

Ground Two:

A claim based on asserted “newly discovered evidence” and alleging various types of
prosecutorial misconduct (Pet. Mem. at 22-34);

Ground Three:

A claim alleging ineffective assistance of counsel, based on trial counsel’s asserted
abandonment of the case and failure to present a defense, investigate the case, and call
critical witnesses (Pet. Mem. at 34-46);

Ground Four:

A claim that Petitioner was denied his right to testify, and thus to present a defense, in
violation of the Fifth, Sixth, and Fourteenth Amendments (Pet. Mem. at 46-48); and

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES--GENERAL
Case No. EDCV 11-609-MMM (MAN)
Ground Five:

Date: April 19, 2011

Another claim alleging ineffective assistance of counsel, based on trial counsel’s
“concession” of Petitioner’s guilt (Pet. Mem. at 48-58.)

Based on the allegations of the Petition documents and the Court’s review of the exhibits submitted with the
Petition, only Ground Five appears to have been exhausted, because it was raised in Petitioner’s direct appeal.1
Petitioner alleges that he has pursued habeas relief in the trial court, California Court of Appeal, and California
Supreme Court, but he does not identify the claims he raised in those state habeas proceedings and has not provided
copies of his state habeas petitions. Moreover, and critically, while he alleges that the trial court and California
Court of Appeal rendered decisions on his state habeas petitions, he does not allege that the California Supreme
Court has done so. Pursuant to Rule 201 of the Federal Rules of Evidence, the Court takes judicial notice of the
electronically available dockets for the California Supreme Court, which show that Petitioner’s habeas petition
(Case No. S187353) was filed on October 18, 2010, and remains pending.
Thus, even assuming that Petitioner fairly presented Grounds One through Four to the California Supreme Court
through his pending habeas petition, these four claims are unexhausted at present, because the state high court has
not yet resolved them. Accordingly, the Petition is “mixed” and subject to dismissal on that basis.2 However, when
a petition is “mixed,” the petitioner must be given the opportunity to dismiss the action without prejudice or to
amend the petition to delete the unexhausted claims and proceed only with the exhausted claims. Rose, 455 U.S.
at 510, 102 S. Ct. at 1199 (the district court must give a petitioner “the choice of returning to state court to exhaust
his claims or of amending or resubmitting the habeas petition to present only exhausted claims”); see also James
1

The exhibits show that the claim was raised before the California Court of Appeal during Petitioner’s
direct appeal. However, Petitioner has not submitted a copy of the subsequent petition for review filed in his direct
appeal proceedings. Thus, while the Court has assumed that Petitioner also raised Ground Five in his petition for
review, there is no evidence before the Court that this, in fact, occurred.
2

Federal courts may not grant habeas relief to a person held in state custody unless the petitioner has
exhausted his available state court remedies as to each of the issues presented. 28 U.S.C. § 2254(b)(1)(A); Rose
v. Lundy, 455 U.S. 509, 518, 102 S. Ct. 1198, 1203 (1982); Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir.
2005). To satisfy the exhaustion requirement, a state prisoner must “fairly present” his federal claim to the state
courts, that is, give them a fair opportunity to consider and correct violations of the prisoner’s federal rights. See
Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 888 (1995); Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th
Cir. 2003) (en banc). A state prisoner seeking relief with respect to a California conviction is required to “fairly
present” his federal claims to the California Supreme Court. See Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct.
1347, 1349 (2004) (a state prisoner must fairly present his claim to a state supreme court having the power of
discretionary review); Keating v. Hood, 133 F.3d 1240, 1242 (9th Cir. 1998). A Section 2254 habeas petition that
contains both exhausted and unexhausted claims is considered to be “mixed.”

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES--GENERAL
Case No. EDCV 11-609-MMM (MAN)

Date: April 19, 2011

v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). In addition, through two different procedures, a district court has the
discretion to stay a “mixed” petition while the petitioner returns to state court to present his or her unexhausted
claims. See Rhines v. Weber, 544 U.S. 269, 275-77, 125 S. Ct. 1528, 1534-35 (2005) (addressing the requirements
for a Rhines stay); and King v. Ryan, 564 F.3d 1133, 1143 (9th Cir. 2009) (confirming the continued viability of
the Ninth Circuit’s alternate Kelly stay procedure), cert. denied, 130 S. Ct. 214 (2009).
To avoid summary dismissal of his “mixed” Petition, Petitioner is required to elect one of the foregoing options,
viz., requesting dismissal of the case without prejudice, requesting dismissal of the unexhausted claims and
proceeding on the exhausted claim, or seeking a Rhines or Kelly stay. This situation is complicated, however, by
the fact that Petitioner’s state high court petition is pending. Should the California Supreme Court grant Petitioner
habeas relief, this action could become moot.
Accordingly, Petitioner must promptly respond to this Order and show cause why this case should not be dismissed
for lack of exhaustion. If, in fact, Ground Five is exhausted, Petitioner must supply proof of such exhaustion with
his Response.3 If Ground Five is exhausted and the Petition thus is “mixed,” to avoid dismissal, Petitioner must
elect one of the following four options
Option One: Petitioner may allow the Petition to be dismissed without prejudice on the basis that it is mixed
and continue to exhaust Grounds One through Four in the California Supreme Court. Under this option, once the
state exhaustion process is complete, Petitioner would have to file a new and fully-exhausted federal habeas petition
containing all his exhausted claims. Petitioner is cautioned that any such new federal habeas petition he might file
would be subject to the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1) and likely would be
untimely. If Petitioner chooses Option One, he must, on or before the date set forth below, file and serve a Notice
of Dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1).
Option Two: Petitioner may dismiss unexhausted Grounds One through Four and proceed only on his
remaining exhausted claims in the Petition (i.e., Ground Five). Petitioner is cautioned that, if the Petition is resolved
on its merits before Petitioner exhausts Grounds One through Four and he attempts to raise the claims in this Court
through a second federal habeas petition, any such subsequent filing may be procedurally barred as a second or
successive petition pursuant to 28 U.S.C. § 2244(b). Should Petitioner choose Option Two, he must, on or before
the date set forth below, file and serve a document entitled Notice of Voluntary Dismissal of Grounds One through
Four, in which he clearly states he is voluntarily dismissing these four claims, without prejudice, on the basis that
the claims are unexhausted.
3

If Ground Five was not fairly presented to the California Supreme Court in Petitioner’s petition for
review, the Petition is fully unexhausted and must be summarily dismissed. See Raspberry v. Garcia, 448 F.3d
1150, 1154 (9th Cir. 2006) (the stay and abeyance procedure is not available when a petition is fully unexhausted).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES--GENERAL
Case No. EDCV 11-609-MMM (MAN)

Date: April 19, 2011

Option Three: Petitioner may request a Rhines stay by filing, by no later than the date set forth below, a
Response that: (1) requests a Rhines stay of the Petition; (2) establishes that Petitioner had good cause for his failure
to exhaust Grounds One through Four before proceeding to federal court; and (3) establishes, consistently with the
showing required under Rhines, supra, why this Court should exercise its discretion in favor of staying this action.
In addition, in his Response, Petitioner must indicate which of the prior two Options he elects should his
request for a stay be denied.
Option Four: Petitioner may request a Kelly stay by filing, by no later than the date set forth below, a
Response that: (1) requests a Kelly stay of the Petition; (2) states that Petitioner wishes to exhaust Grounds One
through Four in state court and to have these six claims dismissed from the Petition, without prejudice, if a Kelly
stay is granted; and (3) establishes why Grounds One through Four, once exhausted, will be timely when he seeks
to amend the Petition to add back the claims.4 In addition, in his Response, Petitioner must indicate which of
the first two Options he elects should his request for a stay be denied.5
Petitioner is cautioned that a failure to respond to this Order by the date set forth below will
be deemed to constitute an exercise of Option One, and the Court will forward the case to the
District Judge with a recommendation that this action be dismissed without prejudice.
Accordingly, IT IS ORDERED that by no later than May 6, 2011, Petitioner must file a Response to this Order.
If Petitioner wishes to elect Option One, he may comply with this Order by simply filing a Notice of Dismissal,
pursuant to Rule 41(a)(1)(a) of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.

4

“Amendments made after the statute of limitations has run relate back to the date of the original
pleading if the original and amended pleadings ‘ar[i]se out of the [same] conduct, transaction, or occurrence.’”
Mayle v. Felix, 545 U.S. 644, 655, 125 S. Ct. 2562, 2569 (2005) (quoting Fed. R. Civ. P. 15(c)(2)). “So long as
the original and amended petitions state claims that are tied to a common core of operative facts, relation back will
be in order.” Id. at 664, 125 S. Ct. at 2574. Claims being added to a habeas petition through amendment do not
relate back “simply because [they arise] from the same trial, conviction, or sentence.” King, 564 F.3d at 1141
(citation and quotation marks omitted).
5

If Petitioner intends to seek a stay of this case, he may combine Options Three and Four by filing a
Response in which he argues why he is entitled to a Rhines stay or, in the alternative, a Kelly stay.

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