Avalos v. Lopez et al
Filing
11
ORDER by Judge ARMSTRONG denying 6 Motion to Dismiss; granting 10 Motion for Leave to File (lrc, COURT STAFF) (Filed on 1/25/2012)
1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE NORTHERN DISTRICT OF CALIFORNIA
3
4
5
6
7
8
No. C 11-03022 SBA (PR)
RALPH AVELINO AVALOS,
ORDER GRANTING PETITIONER'S
MOTION TO AMEND PETITION TO
PROCEED ON EXHAUSTED CLAIM
AND TO DELETE UNEXHAUSTED
CLAIMS; DENYING RESPONDENT'S
MOTION TO DISMISS; AND
REINSTATING ORDER TO SHOW
CAUSE
Petitioner,
v.
CONNIE GIPSON, Acting Warden,
Respondent.
9
/
11
For the Northern District of California
United States District Court
10
12
13
14
15
Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. ยง 2254.
In an Order dated July 15, 2011, the Court ordered Respondent to show cause why the
petition should not be granted.
Respondent now moves to dismiss the petition as a mixed petition containing both exhausted
16
and unexhausted claims (docket no. 6). Petitioner opposes the motion and concedes that certain
17
claims in his federal habeas petition are unexhausted. He requests that the Court delete them.
18
Also before the Court is Petitioner's motion to amend his federal petition to proceed only
19
with his exhausted claim and to delete the unexhausted claims. Attached to the aforementioned
20
motion is his Amended Petition containing only the exhausted claim.
21
For the reasons discussed below, the Court GRANTS Petitioner's motion to amend to
22
proceed only with his exhausted claim, GRANTS his request to delete the unexhausted claims,
23
DENIES Respondent's motion to dismiss the petition, and reinstates the Court's July 15, 2011 order
24
to show cause as to the fully exhausted Amended Petition.
25
DISCUSSION
26
Petitioner listed four grounds for relief in his original federal petition, including:
27
(1) sentencing error; (2) prosecutorial misconduct, (3) ineffective assistance of counsel; and
28
(4) improper admission of evidence. (Pet., Memo. at 10.)
1
Respondent argues that Petitioner's prosecutorial misconduct claim was the only claim
2
properly presented to the California Supreme Court, and that the remaining three claims "did not
3
appear in the California Supreme Court filing." (Mot. to Dismiss at 2.) In his opposition, Petitioner
4
concedes that those three remaining claims are unexhausted, and requests to delete the unexhausted
5
claims. (Opp'n at 1-2.)
6
7
8
Here, the parties do not dispute that Petitioner "fairly presented" his federal prosecutorial
misconduct claim in state court; therefore, the Court finds that this claim is exhausted.
A federal district court must dismiss a federal habeas petition containing any claim as to
faced with a mixed petition, such as the present petition, the court must on its own motion provide
11
For the Northern District of California
which state remedies have not been exhausted. Rose v. Lundy, 455 U.S. 509, 522 (1982). When
10
United States District Court
9
the petitioner an opportunity to amend the mixed petition by striking unexhausted claims as an
12
alternative to suffering dismissal. Jefferson v. Budge, 419 F.3d 1013, 1016 (9th Cir. 2005) (citing
13
Rhines v. Webber, 544 U.S. 269, 277 (2005)); Hunt v. Pliler, 384 F.3d 1118, 1125 (9th Cir. 2004);
14
Olvera v. Giurbino, 371 F.3d 569, 573 (9th Cir. 2004); James v. Pliler, 269 F.3d 1124, 1125-26 (9th
15
Cir. 2001); Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000); see also Guillory v. Roe, 329
16
F.3d 1015, 1017-18 (9th Cir. 2003) (error for district court to deny petitioner's motion to strike
17
unexhausted claims as an alternative to suffering dismissal).
18
As mentioned above, Petitioner has filed a motion to amend the petition to delete the
19
unexhausted claims. The Court GRANTS Petitioner's motion to amend the petition to proceed only
20
with his exhausted prosecutorial misconduct claim, GRANTS his request to delete the unexhausted
21
claims, DENIES Respondent's motion to dismiss, and reinstates the Court's July 15, 2011 order to
22
show cause as to the fully exhausted Amended Petition. The parties are directed to abide by the
23
briefing schedule outlined below.
24
CONCLUSION
25
For the foregoing reasons,
26
1.
The Court GRANTS Petitioner's motion to amend the petition to proceed only with
27
his exhausted prosecutorial misconduct claim and GRANTS his request to delete the unexhausted
28
claims (docket no. 10). Therefore, the Court deletes the following unexhausted claims:
2
1
(1) sentencing error; (3) ineffective assistance of counsel; and (4) improper admission of evidence.
2
The Clerk of the Court is directed to file the document attached to Petitioner's motion to amend,
3
which is incorrectly labeled "Amended Complaint," and docket the aforementioned document as
4
Petitioner's "Amended Petition." The Clerk is further directed to mark the Amended Petition as filed
5
on January 5, 2012, the date it was received by the Court.
6
2.
Respondent's motion to dismiss (docket no. 6) is DENIED.
7
3.
The Clerk shall serve a copy of this Order and the Amended Petition and all
8
attachments thereto upon Respondent and Respondent's attorney, the Attorney General of the State
9
of California. The Clerk shall also serve a copy of this Order on Petitioner at his current address.
The Court's July 15, 2011 order to show cause is reinstated as to Petitioner's remaining prosecutorial
11
For the Northern District of California
United States District Court
10
misconduct claim in his Amended Petition.
12
Respondent is ordered to file an answer and supporting documents within sixty (60) days
13
from the date of this Order. Respondent shall file with an answer a copy of all state records that
14
have been transcribed previously and that are relevant to a determination of the issues presented by
15
the Amended Petition.
16
If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
17
Court and serving it on Respondent within thirty (30) days of his receipt of the answer. Should
18
Petitioner fail to do so, the Amended Petition will be deemed submitted and ready for decision
19
thirty (30) days after the date Petitioner is served with Respondent's answer.
20
4.
Connie Gipson, the current acting warden at California State Prison-Corcoran, has
21
been substituted as Respondent in place of Petitioner's prior custodian pursuant to Rule 25(d) of the
22
Federal Rules of Civil Procedure.
23
5.
24
IT IS SO ORDERED.
25
DATED:
This Order terminates Docket nos. 6 and 10.
1/23/12
SAUNDRA BROWN ARMSTRONG
United States District Judge
26
27
28
3
1
2
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
3
4
RALPH AVELINO AVALOS JR,
Case Number: CV11-03022 SBA
Plaintiff,
5
6
7
8
9
11
For the Northern District of California
United States District Court
10
12
CERTIFICATE OF SERVICE
v.
RAUL LOPEZ et al,
Defendant.
/
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 January 25, 2012, 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.
13
14
15
16
17
Ralph Avelino Avalos T44828
Corcoran State Prison
P.O. Box 3481
Corcoran, CA 93212
Dated: January 25, 2012
Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk
18
19
20
21
22
23
24
25
26
27
28
G:\PRO-SE\SBA\HC.11\Avalos3022.denyMTD-reinstateOSC.wpd
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?