Wright v. Dept. of Correction

Filing 12

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS MIXED PETITION; DIRECTING PETITIONER TO ELECT COURSE OF ACTION WITHIN THIRTY DAYS by Judge William Alsup granting 8 Motion to Dismiss (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 12/12/2012)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9
RICKY WRIGHT,

No. C 11-5123 WHA (PR)

10
v.
For the Northern District of California

United States District Court

Petitioner,
11
12
DEPARTMENT OF CORRECTIONS,
13

ORDER GRANTING
RESPONDENT’S MOTION TO
DISMISS MIXED PETITION;
DIRECTING PETITIONER TO
ELECT COURSE OF ACTION
WITHIN THIRTY DAYS

Respondent.
14
/

(Docket No. 8)

15
INTRODUCTION

16
17

This is a habeas case filed pro se by a state prisoner. Respondent was ordered to show

18

cause why the petition should not be granted based on the four cognizable claims in the petition.

19

Respondent filed a motion to dismiss on the grounds that three of the claims have not been not

20

exhausted. Petitioner has filed an opposition and respondent has filed a reply brief. For the

21

reasons set out below, the motion is GRANTED and petitioner is ordered choose from one of

22

three courses of action.

23

STATEMENT

24

In 2010, petitioner pled guilty in Santa Clara County Superior Court to committing

25

second-degree robbery and vandalism, and admitted to using a deadly weapon and to two prior

26

“strike” convictions. The trial court sentenced him to a term of 36 years to life in state prison.

27

On appeal, the California Court of Appeal affirmed the judgment, and the California Supreme

28

Court denied a petition for review. Thereafter, petitioner filed the instant federal habeas

1
2
3

petition.
ANALYSIS
An application for a federal writ of habeas corpus filed by a prisoner who is in state

4

custody pursuant to a judgment of a state court may not be granted unless the prisoner has first

5

exhausted state judicial remedies, either by way of a direct appeal or in collateral proceedings,

6

by presenting the highest state court available with a fair opportunity to rule on the merits of

7

each and every issue he or she seeks to raise in federal court. See 28 U.S.C. 2254(b),(c);

8

Granberry v. Greer, 481 U.S. 129, 133-34 (1987).

9

The United States Supreme Court held in Rose v. Lundy, 455 U.S. 509 (1982), that
federal courts must dismiss a habeas petition which contains one or more unexhausted claims.

11
For the Northern District of California

United States District Court

10

Id. at 522 (1982). If the petition combines exhausted and unexhausted claims, Rose v. Lundy

12

requires dismissal of the entire habeas petition without reaching the merits of any of its claims.

13

Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). However, the rule is not as absolute as

14

might first appear. Rose itself provides that the dismissal must be with leave to amend to delete

15

the unexhausted claims; if they are deleted, the court can then consider those which remain. See

16

Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000). There is another exception: rather than

17

dismiss, the court may stay a mixed petition to allow the petitioner to return to state court to

18

exhaust the unexhausted issue or issues, Rhines v. Weber, 544 U.S. 269, 277-78 (2005).

19

Petitioner makes four claims in his petition: (1) his right to due process was denied when

20

the trial court declined to strike his prior “strike” convictions; (2) he was sentenced as a

21

“habitual criminal offender” but not charged as such; (3) at the entry of guilty plea and the

22

sentencing, the trial court should have conducted a hearing on whether he was sane when he

23

committed the offense; and (4) he was denied due process because he was imprisoned instead of

24

being civilly committed on the basis of his mental illness.

25

After petitioner was convicted and sentenced in the trial court, he appealed to the

26

California Court of Appeal and then filed a petition for review in the California Supreme Court

27

(Mot. Ex. 1). The parties agree that petitioner did not file any habeas petitions or otherwise

28

return to the California Supreme Court. The petition for review only set forth the first claim
2

(ibid.). Petitioner concedes that the second claim has not been exhausted and he requests that it

3

be dismissed. As to the third and fourth claims, he argues that they should be combined with

4

the first claim and not considered as separate claims because he exhausted their “factual

5

predicate.” The petition for review asserted that petitioner suffered from mental illness, which

6

is arguably part of the factual predicate for his third and fourth claims (ibid.). Petitioner only

7

raised his mental illness, however, to argue the trial court should have struck his prior “strike”

8

convictions because of this illness (ibid.). As such, the mental illness only served as support for

9

his first claim herein – that the trial court violated his right to due process by failing to strike his

10

prior convictions, and did not exhaust his separate claims herein that the trial court should have

11
For the Northern District of California

petitioner raises in the instant petition, and did not include the second, third or fourth claims

2

United States District Court

1

held a hearing (claim three) and civilly committed him (claim four). Nevertheless, to the extent

12

the third claim and fourth claim argue that he suffered from mental illness when he committed

13

the offense, such an argument will be considered as part of his first claim. Specifically, the first

14

claim will be considered to include the argument that at sentencing the trial court should have

15

held a hearing on petitioner’s mental illness at the time of the offense, and granted his motion to

16

strike his prior convictions based upon his suffering from such an illness. The third and fourth

17

claims are otherwise unexhausted, as his the second claim. Respondent’s motion to dismiss the

18

petition as a mixed petition containing both unexhausted and exhausted claims will be granted,

19

and petitioner must choose a course of action from the options described below.
CONCLUSION

20
21

1. Respondent's motion to dismiss (document number 8) is GRANTED.

22

2. Petitioner may chose from three possible courses of action: (1) he may dismiss this

23

petition with an eye to exhausting his unexhausted claims and then filing another federal

24

petition;1 (2) he may amend the petition to dismiss the unexhausted claims, and proceed with

25
26
27
28

Any subsequent federal petition may be barred by the one-year statute of limitations
in 28 U.S.C. 2244(d).
1

3

1

the three claims that are exhausted;2 or (3) he may ask for a stay of this case while he returns to

2

state court to attempt to exhaust the three unexhausted claims, and then, if unsuccessful in state

3

court, return here and ask that the stay be lifted. If he chooses the third option of seeking a

4

stay, he is cautioned that a stay can only be granted if he shows "good cause" for his failure to

5

exhaust the claims sooner, that the claims are "potentially meritorious," and that he has not

6

engaged in "dilatory litigation tactics." See Rhines v. Weber, 544 U.S. 269, 277 (2005).

7

3. Petitioner must elect one of the three choices set out in section three within thirty

8

days of the date this order is entered. If he does not, this case will be dismissed without

9

prejudice.
IT IS SO ORDERED.

11
Dated: December 10 , 2012.
For the Northern District of California

United States District Court

10

12

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
G:\PRO-SE\WHA\HC.11\WRIGHT5123.MTDFTE.wpd

25
26
27
If he chooses this option he probably will not be able to file a future federal petition
containing the unexhausted claims because second federal petitions are generally barred by
28 U.S.C. 2244(b)(2).
2

28

4