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)

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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

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