Dibocce v. Paramo

Filing 14

Order by Hon. Vince Chhabria denying 13 Motion to Stay; Dismissing Petition Without Prejudice; Denying Certificate of Appealability.(knm, COURT STAFF) (Filed on 9/10/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALONZO DIBOCCE,

Case No. 15-cv-03523-VC (PR)

Petitioner,
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v.
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DANIEL PARAMO,
Respondent.

ORDER DENYING MOTION FOR
STAY; DISMISSING PETITION
WITHOUT PREJUDICE; DENYING
CERTIFICATE OF APPEALABILITY
Re: Dkt. No. 13

United States District Court
Northern District of California

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On July 8, 2015, Alonzo Dibocce, a state prisoner, filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. On August 20, 2015, Dibocce filed a motion, under
Rhines v. Weber, 544 U.S. 269 (2005), to stay and abey the petition while he exhausts all of his
claims in state court. This motion is denied.
Before a petitioner may challenge either the fact or length of his confinement in a federal
habeas petition, he must exhaust state remedies for all claims. See Rose v. Lundy, 455 U.S. 509,
522 (1982). The general rule is that a federal district court must dismiss a federal habeas petition
containing any claim as to which state remedies have not been exhausted. Id. Although a mixed

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petition, that is, one with exhausted and unexhausted claims, may be stayed, a fully unexhausted
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federal habeas petition may not be stayed and must be dismissed. Rasberry v. Garcia, 448 F.3d
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1150, 1154 (9th Cir. 2006) (“Once a district court determines that a habeas petition contains only
unexhausted claims, it need not inquire further as to the petitioner's intentions. Instead, it may
simply dismiss the habeas petition for failure to exhaust.”); Jones v. McDaniel, 320 Fed. Appx.
784, 786 (9th Cir. 2009) (affirming dismissal of a fully unexhausted petition and denial of a stay,
because a “Rhines stay is only available for a mixed habeas petition where at least some of the
claims have been exhausted, and none of [petitioner's] claims were exhausted”).

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It is apparent from Dibocce’s motion that none of his claims have been exhausted.
Therefore, the motion for a stay is denied and the petition is dismissed without prejudice as
unexhausted. Dibocce may file a new petition once the claims have been exhausted. Because
reasonable jurists would not find the result debatable, a certificate of appealability is denied. See
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
The clerk shall close the file.

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IT IS SO ORDERED.
Dated: September 10, 2015
______________________________________
VINCE CHHABRIA
United States District Judge

United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALONZO DIBOCCE,

Case No. 15-cv-03523-VC

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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DANIEL PARAMO,
Defendant.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on September 10, 2015, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Alonzo Dibocce ID: AU1396
R J Donovan Correctional Facility
480 Alta Road
San Diego, CA 92179

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Dated: September 10, 2015

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Kristen Melen, Deputy Clerk to the
Honorable VINCE CHHABRIA
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