Leong v. Asuncion

Filing 13

ORDER signed by Magistrate Judge Gregory G. Hollows on 9/6/2016 ORDERING petitioner to file an opposition to respondent's 8/31/2016 motion to dismiss by 9/30/2016.(Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

CHRISTOPHER LEONG,

12

No. 2:16-cv-1213 MCE GGH P

Petitioner,

13

v.

14

D. ASUNCION,

15

ORDER

Respondent.

16
17

On August 31, 2016, respondent filed a motion to dismiss based on failure to exhaust one

18

of four claims. Petitioner shall file an opposition by September 30, 2016, and shall state in his

19

opposition whether he intends to move for a stay and abeyance if indeed one of his claims is

20

unexhausted.

21

The United States Supreme Court has held that a federal district court may not entertain a

22

petition for habeas corpus unless the petitioner has exhausted state remedies with respect to each

23

of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982). The exhaustion of state court

24

remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. §

25

2254(b)(1).

26

A petitioner satisfies the exhaustion requirement by providing the highest state court with

27

a full and fair opportunity to consider all claims before presenting them to the federal court.

28

Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.),
1

1

cert. denied, 478 U.S. 1021 (1986). A state court has had an opportunity to rule on the merits of a

2

claim when the petitioner has fairly presented that claim to that court. The fair presentation

3

requirement is met where the petitioner has described the operative facts and legal theory on

4

which his claim is based. Picard, 404 U.S. at 277-78. Generally, it is “not enough that all the

5

facts necessary to support the federal claim were before the state courts . . . or that a somewhat

6

similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982). Instead,

7

[i]f state courts are to be given the opportunity to correct alleged
violations of prisoners’ federal rights, they must surely be alerted to
the fact that the prisoners are asserting claims under the United
States Constitution. If a habeas petitioner wishes to claim that an
evidentiary ruling at a state court trial denied him the due process of
law guaranteed by the Fourteenth Amendment, he must say so, not
only in federal court, but in state court.

8
9
10
11

Duncan v. Henry, 513 U.S. 364, 365 (1995).

12

If the petition is indeed a mixed petition, petitioner may proceed in one of two ways when

13

he files his opposition. He may eliminate the fourth claim as unexhausted and proceed on the

14

exhausted Claims One through Three only. Or, petitioner may file a motion to stay this action

15

pending exhaustion of the unexhausted fourth claim.1

16

In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005) the United States Supreme

17

Court found that a stay and abeyance of a mixed federal petition should be available only in the

18

limited circumstance that good cause is shown for a failure to have first exhausted the claims in

19

state court, that the claim or claims at issue potentially have merit and that there has been no

20

indication that petitioner has been intentionally dilatory in pursuing the litigation. Rhines, supra,

21

at 277-78, 125 S.Ct at 1535.

22

If petitioner wishes to stay this action, he shall file a motion addressing the Rhines factors.

23

In the alternative, petitioner may proceed with a stay request as outlined in King v. Ryan, 564

24

F.3d 1133 (9th Cir. 2009) citing Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). In King, the

25

1

26
27
28

Petitioner is cautioned that the habeas corpus statute imposes a one-year statute of limitations
for filing non-capital habeas corpus petitions in federal court. In most cases, the one year period
will start to run on the date on which the state court judgment became final by the conclusion of
direct review or the expiration of time for seeking direct review, although the statute of
limitations is tolled while a properly filed application for state post-conviction or other collateral
review is pending. 28 U.S.C. § 2244(d).
2

1

Ninth Circuit held that in addition to the stay procedure authorized in Rhines, district courts also

2

have discretion to permit petitioners to follow the three-step stay-and-abeyance procedure

3

approved in Calderon v. U.S. Dist. Ct. (Taylor), 134 F.3d 981, 986 (9th Cir. 1998) and Kelly v.

4

Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds, Robbins v. Carey, 481 F.3d

5

1143 (2007). Pursuant to the King procedure, (1) a petitioner amends his petition to delete any

6

unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted

7

petition, allowing the petitioner the opportunity to proceed to state court to exhaust the deleted

8

claims; and (3) the petitioner later amends his petition and re-attaches the newly-exhausted claims

9

to the original petition. Kelly, 315 F.3d at 1070-71. The King stay-and-abeyance procedure has

10

no requirement of a good cause showing or that the claims are potentially meritorious. However,

11

no statute of limitations protection is imparted by such a stay, nor are exhausted claims

12

adjudicated during the pendency of such a stay.

13

In the alternative, petitioner may file an amended petition in this court raising only

14

exhausted claims. If petitioner chooses the second method, however, the court cautions that he

15

will risk forfeiting consideration of the unexhausted claims in this or any other federal court. See

16

McCleskey v. Zant, 499 U.S. 467 (1991); see also Rose, 455 U.S. at 520-21; Rule 9(b), Rules

17

Governing Section 2254 Cases.

18

Accordingly, IT IS HEREBY ORDERED that: Petitioner shall file an opposition to

19

respondent’s August 31, 2016 motion to dismiss by September 30, 2016. Petitioner is cautioned

20

that failure to respond to the instant order, or to file an opposition to the pending motion to

21

dismiss, may result in a recommendation that this action be dismissed.

22

DATED: September 6, 2016

23
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

24
25
26

GGH:076/Leon1213.opp.sta

27
28
3