Jones v. Swarthout

Filing 12

ORDER signed by Judge Kimberly J. Mueller on 7/30/2013 REFERRING this matter back to the magistrate judge to determine whether the petition should be (1) dismissed in its entirety based on the unexhausted claim; (2) stayed to allow Petitioner to exhause state remedies for his First Amended claim; (3) dismissed on the merits. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL C. JONES,
Petitioner,

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vs.

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No. 2:11-cv-1497 KJM EFB P

GARY SWARTHOUT,
Respondent.

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ORDER
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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of

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habeas corpus under to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate

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Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On July 18, 2012, the magistrate judge filed findings and recommendations,

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which were served on petitioner and which contained notice to petitioner that any objections to

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the findings and recommendations were to be filed within fourteen days. Petitioner has not filed

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objections to the findings and recommendations.
The court presumes that any findings of fact are correct. See Orand v. United

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States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are

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reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.

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1983).

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The magistrate judge's findings and recommendations state that "[t]he court need

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not reach the merits of petitioner's First Amendment claim because it is unexhausted." (ECF 11

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at 5.) The court finds that petitioner’s First Amendment claim cannot be dismissed for failure to

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exhaust.

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A federal court may not grant a petition for writ of habeas corpus brought by a

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state prisoner if the petition contains a claim that has not been exhausted in the state courts.

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28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 515 (1982). When a prisoner files a

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petition containing both exhausted and unexhausted claims, the district court may dismiss the

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entire petition or stay the petition, allowing the prisoner to fulfill the exhaustion requirement

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before continuing with federal proceedings. Rhines v. Weber, 544 U.S. 269, 275-276 (2005);

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King v. Ryan, 564 F.3d 1133, 1141 (9th Cir. 2009). However, "the district court would abuse its

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discretion if it were to grant [a prisoner] a stay when his unexhausted claims are plainly

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meritless." Rhines, 544 U.S. at 277; Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008).

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Accordingly, the district court may consider whether the unexhausted claims may be dismissed

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because "it is perfectly clear that the applicant does not raise even a colorable federal claim."

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Pre v. Almager, 453 Fed. App’x 674 (9th Cir. 2010) (citing Cassett v. Stewart, 406 F.3d 614, 624

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(9th Cir. 2005)). The district court may not, however, simply dismiss the unexhausted claim for

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failure to exhaust and review the exhausted claims on the merits, Pre, 453 Fed. App’x at 674, as

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the magistrate judge recommends here.

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The court adopts the magistrate judge's finding that petitioner's Ex Post Facto

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claim should be dismissed because as noted in the findings and recommendations, a class action

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suit was filed in this district challenging Marsy's Law, CAL. PENAL CODE § 3041.5, the same

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statute that petitioner argues is unconstitutional. (ECF 11 at 7 (citing Gilman v. Fisher, No. Civ.

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S-05-830 LKK GGH (E.D. Cal.)).) The certified class includes "all California state prisoners
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who have been sentenced to a life term with possibility of parole for an offense that occurred

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before November 4, 2008," Gilman, supra, ECF 340, a class that includes petitioner. A motion to

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de-certify this class recently was denied. Id., ECF 479.

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Accordingly, this matter is referred back to the magistrate judge to determine

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whether the petition should be (1) dismissed in its entirety based on the unexhausted claim;

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(2) stayed to allow petitioner to exhaust state remedies for his First Amendment claim; or

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(3) dismissed on the merits.

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DATED: July 30, 2013.

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UNITED STATES DISTRICT JUDGE

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