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)

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