Hall v. Diaz

Filing 2

ORDER Regarding Mixed Petition for Writ of Habeas Corpus. Signed by Judge Thelton E. Henderson on 04/22/2013. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 4/24/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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VINCENT HALL,

No. C 13-1426 TEH (PR)

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ORDER REGARDING MIXED PETITION
FOR WRIT OF HABEAS CORPUS

Petitioner,
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v.
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RALPH M. DIAZ, Warden,

Docket # 1

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Respondent.
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/
United States District Court
For the Northern District of California

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On March 29, 2013, Petitioner Vincent Hall, an inmate at

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the California Substance Abuse Treatment Facility and State Prison,

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filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

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§ 2254.

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For the following reasons, the Court finds that Petitioner has filed

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a mixed petition and orders Petitioner to inform the Court about how

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he wishes to proceed.

On the same date, Petitioner paid the $5.00 filing fee.

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I

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Petitioner’s federal petition provides the following
information.

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Petitioner was convicted by a jury in the Superior Court

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of San Francisco County of second degree murder with a knife and

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three counts of possession for sale or transportation of oxycodone.

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On March 13, 2009, the Superior Court sentenced Petitioner to

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seventy-eight years to life.

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the California Court of Appeal, which affirmed the conviction in

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2011.

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in 2012.

Petitioner appealed his conviction to

The California Supreme Court denied the petition for review
Petitioner then filed the instant federal petition for a

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writ of habeas corpus.

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In this petition, Petitioner asserts five grounds for

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relief, all of which appear to be colorable.

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indicates that one of the claims has not been exhausted in the state

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courts.

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prosecution “to disclose relevant exculpatory evidence relating to

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the credibility of two investigating officers who provided important

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testimony supporting the prosecution case.”

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indicates that, after his appeal was decided, his trial counsel was

However, Petitioner

Petitioner describes this claim as the failure of the

Pet’n at 8.

He

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provided with information that the prosecution had received

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information that past conduct of Inspector Jones and Officer

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McDevitt “may have implications for trials in which the officer may

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have testified.”

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for a writ of habeas corpus based on the information about Officer

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McDevitt, but has not yet received the information about Inspector

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Jones.

Petitioner states that he is preparing a petition

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II

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Prisoners in state custody who wish to challenge

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collaterally in federal habeas proceedings either the fact or length

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of their confinement are required first to exhaust state judicial

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remedies, either on direct appeal or through collateral proceedings,

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by presenting the highest state court available with a fair

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opportunity to rule on the merits of each and every claim they seek

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to raise in federal court.

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exhaustion-of-state-remedies doctrine “reflects a policy of

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federal-state comity” designed to give a State “‘an initial

See 28 U.S.C. § 2254(b), (c).

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The

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opportunity to pass upon and correct alleged violations of its

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prisoners’ federal rights.’”

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(1971) (citations omitted).

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relief on an unexhausted claim, see 28 U.S.C. § 2254(b)(1).

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Picard v. Connor, 404 U.S. 270, 275
The court generally may not grant

The general rule is that a federal district court must

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dismiss a federal habeas petition containing any claim as to which

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state remedies have not been exhausted.

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509, 522 (1982).

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bar to returning to federal court after exhausting available state

See Rose v. Lundy, 455 U.S.

A dismissal solely for failure to exhaust is not a

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remedies.

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Cir. 1995).

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as is the case here, the district court must sua sponte inform the

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habeas petitioner of the mixed petition deficiency and provide him

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an opportunity to amend the mixed petition by withdrawing his

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unexhausted claims and proceeding only on his exhausted claims, or

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of dismissing the entire mixed petition and returning to federal

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court with a new petition once all claims are exhausted.

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v. Budge, 419 F.3d 1013, 1016 (9th Cir. 2005) (citing Rhines v.

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Weber, 544 U.S. 269, 277 (2005)).

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See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th
However, when faced with a post-AEDPA mixed petition,

Jefferson

Petitioners with mixed petitions also may seek a stay of

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the petition pursuant to Pace v. DiGuglielmo, 544 U.S. 408, 416

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(2005), under which a prisoner may file a protective petition in

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federal court and ask the court to stay federal habeas proceedings

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until all state remedies are exhausted.

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authority to issue such stays.

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Rhines, a stay is appropriate where the district court determines

Rhines, 544 U.S. at 277-278.

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District courts have the

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Under

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that good cause existed for the petitioner's failure to exhaust his

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claims in state court, and that such claims are potentially

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meritorious.

Id.; see also Pace, 544 U.S. at 416.

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III

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Based on the foregoing, the Court orders that:

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Within thirty (30) days from the date of this Order,

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Petitioner shall inform the court in writing whether he wishes to

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(1) withdraw his unexhausted claims and proceed only on his

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exhausted claims; (2) dismiss the entire mixed petition and return

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to federal court with a new petition once all claims are exhausted;

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or (3) move for a stay of the petition if he can show that there was

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good cause for his failure to exhaust the unexhausted claims in

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state court and that the claims are potentially meritorious.

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Rhines, 544 U.S. at 277.

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See

Failure to respond within the designated time will result

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in the dismissal of the entire mixed petition without prejudice to

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filing a new federal petition containing only exhausted claims.

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IT IS SO ORDERED.

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DATED

04/22/2013
THELTON E. HENDERSON
United States District Judge

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