Wright v. Dept. of Correction

Filing 16

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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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 ORDER STRIKING UNEXHAUSTED CLAIMS; TO SHOW CAUSE v. For the Northern District of California United States District Court Petitioner, 11 12 DEPARTMENT OF CORRECTIONS, 13 Respondent. 14 / 15 16 This is a habeas case filed pro se by a state prisoner. On December 12, 2012, 17 respondent’s motion to dismiss the petition on the grounds that the second, third and fourth 18 claims were not exhausted was granted. Petitioner was directed to choose from three possible 19 courses of action: (1) dismiss this petition with an eye to exhausting his unexhausted claims and 20 then filing another federal petition; (2) amend the petition to dismiss the unexhausted claims, 21 and proceed with the one claim that is exhausted; or (3) ask for a stay of this case while he 22 returns to state court to attempt to exhaust the second, third and fourth claims, and then, if 23 unsuccessful in state court, return here and ask that the stay be lifted. Thereafter he indicated 24 that he wanted a stay, but he did not show "good cause" for his failure to exhaust the claims 25 sooner, as required by Rhines v. Weber, 544 U.S. 269, 277-79 (2005). On January 22, 2013, he 26 was granted thirty additional days to make that showing. 27 He wrote a letter stating that the attorney who represented him on direct appeal in state 28 court, Jonathan E. Berger, did not explain to him that he could continue to pursue his claims in 1 the state courts. He attaches a letter from Mr. Berger at the conclusion of his direct appeals 2 explaining that if petitioner pursues a federal habeas petition, it must only include claims that 3 had been rejected by the California Supreme Court. Based upon this letter, petitioner should 4 have known that his unexhausted claims two, three and four, could not be raised in federal court 5 because they were not presented to the California Supreme Court. He does not explain or show 6 good cause for his failure to do so, either in the petition for direct review filed by Mr. Berger or 7 in a subsequent state court habeas petition. Consequently, a stay cannot be granted. As 8 indicated in the prior orders, this matter will therefore proceed based solely upon the exhausted 9 claim set forth in the petition (claim one). Claims two, three and four are STRICKEN from the 11 For the Northern District of California United States District Court 10 petition for lack of exhaustion. Respondent shall file with the court and serve on petitioner, within 91 days of the 12 issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 13 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based 14 petitioner’s first claim. Respondent shall file with the answer and serve on petitioner a copy of 15 all portions of the state trial record that have been transcribed previously and that are relevant to 16 a determination of the issues presented by the petition. 17 18 19 20 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 10 , 2013. 21 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 G:\PRO-SE\WHA\HC.11\WRIGHT5123.OSC2.wpd 28 2

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