Eickenhorst v. Gipson

Filing 6

ORDER signed by Magistrate Judge Dale A. Drozd on 01/28/14 ordering that within 30 days of the date of this order, petitioner shall file either: 1) a motion for a stay and abeyance; 2)a motion to dismiss ground 3 of his petition; or 3)a motion to voluntarily dismiss this action. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEREMY SCOTT EICKENHORST,

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Petitioner,

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No. 2:12-cv-2363 DAD P

v.

ORDER

CONNIE GIPSON, Warden,

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Respondent.

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Petitioner, a state prisoner proceeding through counsel, has filed a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee.
BACKGROUND

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In his petition for writ of habeas corpus, petitioner challenges a judgment of conviction

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entered against him on May 27, 2009, in the San Joaquin County Superior Court for lewd acts

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upon a child. Pursuant to that conviction petitioner was sentenced to 75 years to life in state

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prison. On June 17, 2011, the California Court of Appeal for the Third Appellate District

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affirmed his judgment of conviction, and on September 14, 2011, the California Supreme Court

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denied review. (Pet. at 2-3.)
In the pending habeas petition before this court, petitioner claims that: (1) the willful

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destruction of evidence in his case constituted a violation of due process; (2) his sentence of 75

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years to life in state prison is cruel and unusual punishment; and (3) petitioner’s right to due

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process and a fair trial were violated by the lead detective in the case. (Pet. at 6-9.)

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EXHAUSTION OF STATE COURT REMEDIES
Exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of

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habeas corpus. 28 U.S.C. § 2254(b)(1). Exhaustion may only be waived explicitly by

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respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion may not be implied or

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inferred. Thus, state courts must be given the first opportunity to consider and address a state

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prisoner’s habeas corpus claims. See Rhines v. Weber, 544 U.S. 269, 273-74 (2005) (citing Rose

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v. Lundy, 455 U.S. 509, 518-19 (1982)); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) (“Habeas

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petitioners have long been required to adjudicate their claims in state court - that is, ‘exhaust’

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them - before seeking relief in federal court.”); Farmer v. Baldwin, 497 F.3d 1050, 1053 (9th Cir.

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2007) (“This so-called ‘exhaustion requirement’ is intended to afford ‘the state courts a

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meaningful opportunity to consider allegations of legal error’ before a federal habeas court may

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review a prisoner’s claims.”) (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). A

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petitioner satisfies the exhaustion requirement by fairly presenting to the highest state court all

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federal claims before presenting the claims to the federal court. See Baldwin v. Reese, 541 U.S.

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27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276

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(1971); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008).

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DISCUSSION
In this case, counsel for petitioner acknowledges that petitioner did not previously raise

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his current third ground for habeas relief either on appeal or in any petition for writ of habeas

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corpus he filed in state court. (Pet. at 10 & 13.) This court cannot grant habeas corpus relief

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based on a “mixed” petition, containing both exhausted and unexhausted claims. As such, the

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court will grant petitioner thirty days to inform the court how he wishes to proceed after

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considering the following three options:

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(1) First, because there is a “mixed” petition before this court containing both exhausted

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and unexhausted claims, petitioner may elect to seek a stay and abeyance order. Such an order

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would allow petitioner to return to state court to exhaust ground three of his petition. The United
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States Court of Appeals for the Ninth Circuit has analyzed the two procedures available to habeas

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petitioners who wish to proceed with exhausted and unexhausted claims for relief. See King, 564

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F.3d 1133.

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(2) Second, petitioner may elect to abandon ground three of his petition without seeking a
stay and abeyance order and proceed solely on his first two purportedly exhausted claims.
(3) Finally, petitioner may move to voluntarily dismiss this action and complete

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exhaustion of ground three of his petition and then file a new federal petition presenting all of his

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exhausted claims. As counsel is aware, however, this is a potentially risky option since if

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petitioner were to choose it, any future federal petition for writ of habeas corpus may very well be

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time barred.

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CONCLUSION
Accordingly, IT IS HEREBY ORDERED that within thirty days of the date of this order,

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petitioner shall file either: (1) a motion for a stay and abeyance; (2) a motion to dismiss ground

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three of his petition; or (3) a motion to voluntarily dismiss this action.

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Dated: January 28, 2014

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DAD:9
eick2363.exh

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