Romero

Filing 9

AMENDED ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (Amended Order corrects case number on pleading on first page of pleading). Signed by Maria-Elena James on 4/12/2016. (Attachments: # 1 Certificate/Proof of Service)(rmm2S, COURT STAFF) (Filed on 4/12/2016)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California

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No. C 15-5324 MEJ (PR)
In re CECILIO LARA ROMERO,
ORDER TO SHOW CAUSE WHY
PETITION SHOULD NOT BE
DISMISSED; GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS

Petitioner,

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Dkt. No. 6

Petitioner, a prisoner currently incarcerated at the Taft Modified Community

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Correctional Facility, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. §

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2254, challenging a conviction from Contra Costa County Superior Court. He also seeks to

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proceed in forma pauperis under 28 U.S.C. § 1915.

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BACKGROUND
According to the petition, Petitioner was found guilty of unspecified crimes, and, on

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or about August 31, 2012, Petitioner was sentenced to jail. Docket No. 5 (“Pet.”) at 2–3.

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Petitioner does not specify the length of his sentence. Id. at 2. Petitioner appealed his

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conviction and sentence, and the California Court of Appeal affirmed the conviction and

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sentence in 2013. Id. at 3. On November 20, 2015, Petitioner filed a letter with this Court.

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Docket No. 1. That same day, the Clerk of the Court informed Petitioner that he should

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submit his petition for a writ of habeas corpus on the proper form. Docket No. 2. On

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February 10, 2105, Petitioner filed the instant federal habeas petition. Docket No. 5.

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DISCUSSION

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This court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a state court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a);

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Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court shall “award the writ or issue an

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order directing the respondent to show cause why the writ should not be granted, unless it

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appears from the application that the applicant or person detained is not entitled thereto.” 28

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U.S.C. § 2243.

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Prisoners in state custody who wish to challenge collaterally in federal habeas

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proceedings either the fact or length of their confinement are first required to exhaust state

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judicial remedies, either on direct appeal or through collateral proceedings, by presenting the

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highest state court available with a fair opportunity to rule on the merits of each and every

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claim they seek to raise in federal court. See 28 U.S.C. § 2254(b)-(c); see Rose v. Lundy,

United States District Court
For the Northern District of California

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455 U.S. 509, 522 (1982) (holding every claim raised in federal habeas petition must be

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exhausted). The state’s highest court must be given an opportunity to rule on the claims even

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if review is discretionary. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (petitioner

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must invoke “one complete round of the State’s established appellate review process.”); see

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also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (exhaustion requires that prisoner fairly

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present his claim in each appropriate state court, including a state supreme court with powers

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of discretionary review). If available state remedies have not been exhausted as to all claims,

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the district court must dismiss the petition. Duckworth v. Serrano, 454 U.S. 1, 3–5 (1981).

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Petitioner lists numerous grounds for federal habeas relief. Pet. at 5–7. However,

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according to the petition, Petitioner has not presented any of these claims to the California

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Supreme Court. In other words, he has not invoked a complete round of California’s

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established appellate review process. See Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir.

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1999) (holding that California law requires presentation of claims to the California Supreme

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Court through petition for discretionary review in order to exhaust state court remedies)

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(relying on Cal. R. Ct. 28(b) (1999), which was renumbered Rule 8.500 and amended in

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2007, but still provides that the California Supreme Court has the discretion to review

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decisions issued by the California Court of Appeal). The instant petition is therefore subject

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to dismissal for failure to exhaust state remedies. Rose, 455 U.S. at 522 (requiring that all

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claims in a federal habeas petition be exhausted).
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Petitioner may avoid dismissal if he can show that he is entitled to a stay of the action.
Prisoners who may run the risk of having the federal statute of limitations expire while they

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are exhausting their state remedies may avoid this predicament “by filing a ‘protective’

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petition in federal court and asking the federal court to stay and abey the federal habeas

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proceedings until state remedies are exhausted.” Pace v. DiGuglielmo, 544 U.S. 408, 416

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(2005) (citing Rhines v. Webber, 544 U.S. 269, 277–78 (2005)). A federal court may stay a

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petition that raises only unexhausted claims. Mena v. Long, No. 14-55102, 2016 WL

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62540516, *1 (9th Cir. Feb. 17, 2016). A stay and abeyance “is only appropriate when the

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district court determines there was good cause for the petitioner’s failure to exhaust his

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United States District Court
For the Northern District of California

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claims first in state court;” the claims are not meritless; and there were no intentionally

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dilatory litigation tactics by the petitioner. Rhines, 544 U.S. at 277–78. Any stay must be

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limited in time to avoid indefinite delay. Id. Reasonable time limits would be 30 days to get

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to state court, as long as reasonably necessary in state court, and 30 days to get back to

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federal court after the final rejection of the claims by the state court. See id. at 278. If

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Petitioner moves for a stay, he must show that he satisfies the Rhines criteria. The Rhines

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Court cautioned district courts against being too liberal in allowing a stay because a stay

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works against several of the purposes of the AEDPA in that it “frustrates AEDPA’s objective

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of encouraging finality by allowing a petitioner to delay the resolution of the federal

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proceeding” and “undermines AEDPA’s goal of streamlining federal habeas proceedings by

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decreasing a petitioner’s incentive to exhaust all his claims in state court prior to filing his

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federal petition.” Id. at 277.

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In addition, it appears that the instant petition may be untimely. The Antiterrorism

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and Effective Death Penalty Act of 1996 (“AEDPA”), which became law on April 24, 1996,

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imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed

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by state prisoners. Petitions filed by prisoners challenging noncapital state convictions or

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sentences must be filed within one year of the latest of the date on which: (A) the judgment

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became final after the conclusion of direct review or the time passed for seeking direct

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review; (B) an impediment to filing an application created by unconstitutional state action
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was removed, if such action prevented petitioner from filing; (C) the constitutional right

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asserted was recognized by the Supreme Court, if the right was newly recognized by the

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Supreme Court and made retroactive to cases on collateral review; or (D) the factual

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predicate of the claim could have been discovered through the exercise of due diligence. 28

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U.S.C. § 2244(d)(1). Time during which a properly filed application for state

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post-conviction or other collateral review is pending is excluded from the one-year time

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limit. Id. § 2244(d)(2). The one-year period generally will run from “the date on which the

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judgment became final by conclusion of direct review or the expiration of the time for

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seeking such review.” 28 U.S.C. § 2244(d)(1)(A). In the instant action, Petitioner reports

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United States District Court
For the Northern District of California

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that the California Court of Appeal affirmed his conviction and sentence in 2013. Pet. at 3.

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Petitioner could seek review of the California Court of Appeal decision by serving and filing

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a petition for review within ten days after the California Court of Appeal’s decision became

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final, Cal. R. Ct. 8.500(e)(1), but did not do so. At the latest, Petitioner’s judgment became

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final in early 2014. The instant action was commenced on November 20, 2015, and is

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possibly untimely, unless Petitioner is entitled to either delayed commencement of the

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limitations period pursuant to 28 U.S.C. § 2244(d)(1)(B)-(D),1 or equitable tolling of the

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limitations period, Holland v. Florida, 560 U.S. 631, 645 (2010) (“[A] ‘petitioner’ is ‘entitled

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to equitable tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently, and

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(2) that some extraordinary circumstance stood in his way’ and prevented timely filing.”)

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(quoting Pace, 544 U.S. at 418)).

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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Within thirty (30) days of the date of this order, Petitioner must show cause

why this federal habeas action should not be dismissed either for failing to exhaust his claims

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The exceptions to the statute of limitations set forth in Section 2244(d)(1)(B)-(D) require
claim-by-claim consideration and allow for delayed commencement of the limitations period
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where the claim was based on a constitutional right newly recognized by the Supreme Court and
28 made retroactive, § 2244(d)(1)(C); or where the factual predicate of the claim could not have
been discovered earlier, § 2244(d)(1)(D).
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before filing suit, or for being untimely. If Petitioner seeks to stay and abey this action, he

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must, within thirty (30) days of the date of this order, file a motion for a stay in which he

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explains why he failed to exhaust his claims in state court before presenting them to this

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court, that his claims are not meritless, and that he is not intentionally delaying resolution of

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his constitutional claims. If Petitioner fails to respond in accordance with this order, the

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action will be dismissed under Federal Rule of Civil Procedure 41(b) for failure to prosecute.

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2.

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This order terminates Docket No. 6.

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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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DATED:

The application to proceed in forma pauperis (Dkt. No. 6) is GRANTED.

April 12, 2016

Maria-Elena James
United States Magistrate Judge

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