Wright v. Dept. of Correction
Filing
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ORDER STRIKING UNEXHAUSTED CLAIMS; ORDER TO SHOW CAUSE Habeas Answer due by 7/12/2013. Signed by Judge William Alsup on 4/10/13. (Attachments: # 1 Certificate/Proof of Service)(dt, COURT STAFF) (Filed on 4/11/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RICKY WRIGHT,
No. C 11-5123 WHA (PR)
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ORDER STRIKING UNEXHAUSTED
CLAIMS; TO SHOW CAUSE
v.
For the Northern District of California
United States District Court
Petitioner,
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DEPARTMENT OF CORRECTIONS,
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Respondent.
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This is a habeas case filed pro se by a state prisoner. On December 12, 2012,
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respondent’s motion to dismiss the petition on the grounds that the second, third and fourth
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claims were not exhausted was granted. Petitioner was directed to choose from three possible
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courses of action: (1) dismiss this petition with an eye to exhausting his unexhausted claims and
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then filing another federal petition; (2) amend the petition to dismiss the unexhausted claims,
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and proceed with the one claim that is exhausted; or (3) ask for a stay of this case while he
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returns to state court to attempt to exhaust the second, third and fourth claims, and then, if
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unsuccessful in state court, return here and ask that the stay be lifted. Thereafter he indicated
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that he wanted a stay, but he did not show "good cause" for his failure to exhaust the claims
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sooner, as required by Rhines v. Weber, 544 U.S. 269, 277-79 (2005). On January 22, 2013, he
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was granted thirty additional days to make that showing.
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He wrote a letter stating that the attorney who represented him on direct appeal in state
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court, Jonathan E. Berger, did not explain to him that he could continue to pursue his claims in
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the state courts. He attaches a letter from Mr. Berger at the conclusion of his direct appeals
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explaining that if petitioner pursues a federal habeas petition, it must only include claims that
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had been rejected by the California Supreme Court. Based upon this letter, petitioner should
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have known that his unexhausted claims two, three and four, could not be raised in federal court
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because they were not presented to the California Supreme Court. He does not explain or show
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good cause for his failure to do so, either in the petition for direct review filed by Mr. Berger or
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in a subsequent state court habeas petition. Consequently, a stay cannot be granted. As
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indicated in the prior orders, this matter will therefore proceed based solely upon the exhausted
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claim set forth in the petition (claim one). Claims two, three and four are STRICKEN from the
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For the Northern District of California
United States District Court
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petition for lack of exhaustion.
Respondent shall file with the court and serve on petitioner, within 91 days of the
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issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing
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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based
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petitioner’s first claim. Respondent shall file with the answer and serve on petitioner a copy of
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all portions of the state trial record that have been transcribed previously and that are relevant to
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a determination of the issues presented by the petition.
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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
court and serving it on respondent within 28 days of the date the answer is filed.
IT IS SO ORDERED.
Dated: April
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, 2013.
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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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G:\PRO-SE\WHA\HC.11\WRIGHT5123.OSC2.wpd
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