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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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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.

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For the Northern District of California

United States District Court

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Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 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

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and unexhausted claims (docket no. 6). Petitioner opposes the motion and concedes that certain

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claims in his federal habeas petition are unexhausted. He requests that the Court delete them.

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Also before the Court is Petitioner's motion to amend his federal petition to proceed only

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with his exhausted claim and to delete the unexhausted claims. Attached to the aforementioned

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motion is his Amended Petition containing only the exhausted claim.

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For the reasons discussed below, the Court GRANTS Petitioner's motion to amend to

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proceed only with his exhausted claim, GRANTS his request to delete the unexhausted claims,

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DENIES Respondent's motion to dismiss the petition, and reinstates the Court's July 15, 2011 order

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to show cause as to the fully exhausted Amended Petition.

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DISCUSSION

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Petitioner listed four grounds for relief in his original federal petition, including:

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(1) sentencing error; (2) prosecutorial misconduct, (3) ineffective assistance of counsel; and

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(4) improper admission of evidence. (Pet., Memo. at 10.)

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Respondent argues that Petitioner's prosecutorial misconduct claim was the only claim

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properly presented to the California Supreme Court, and that the remaining three claims "did not

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appear in the California Supreme Court filing." (Mot. to Dismiss at 2.) In his opposition, Petitioner

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concedes that those three remaining claims are unexhausted, and requests to delete the unexhausted

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claims. (Opp'n at 1-2.)

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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

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For the Northern District of California

which state remedies have not been exhausted. Rose v. Lundy, 455 U.S. 509, 522 (1982). When

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United States District Court

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the petitioner an opportunity to amend the mixed petition by striking unexhausted claims as an

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alternative to suffering dismissal. Jefferson v. Budge, 419 F.3d 1013, 1016 (9th Cir. 2005) (citing

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Rhines v. Webber, 544 U.S. 269, 277 (2005)); Hunt v. Pliler, 384 F.3d 1118, 1125 (9th Cir. 2004);

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Olvera v. Giurbino, 371 F.3d 569, 573 (9th Cir. 2004); James v. Pliler, 269 F.3d 1124, 1125-26 (9th

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Cir. 2001); Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000); see also Guillory v. Roe, 329

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F.3d 1015, 1017-18 (9th Cir. 2003) (error for district court to deny petitioner's motion to strike

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unexhausted claims as an alternative to suffering dismissal).

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As mentioned above, Petitioner has filed a motion to amend the petition to delete the

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unexhausted claims. The Court GRANTS Petitioner's motion to amend the petition to proceed only

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with his exhausted prosecutorial misconduct claim, GRANTS his request to delete the unexhausted

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claims, DENIES Respondent's motion to dismiss, and reinstates the Court's July 15, 2011 order to

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show cause as to the fully exhausted Amended Petition. The parties are directed to abide by the

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briefing schedule outlined below.

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CONCLUSION

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For the foregoing reasons,

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1.

The Court GRANTS Petitioner's motion to amend the petition to proceed only with

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his exhausted prosecutorial misconduct claim and GRANTS his request to delete the unexhausted

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claims (docket no. 10). Therefore, the Court deletes the following unexhausted claims:
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(1) sentencing error; (3) ineffective assistance of counsel; and (4) improper admission of evidence.

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The Clerk of the Court is directed to file the document attached to Petitioner's motion to amend,

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which is incorrectly labeled "Amended Complaint," and docket the aforementioned document as

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Petitioner's "Amended Petition." The Clerk is further directed to mark the Amended Petition as filed

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on January 5, 2012, the date it was received by the Court.

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2.

Respondent's motion to dismiss (docket no. 6) is DENIED.

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3.

The Clerk shall serve a copy of this Order and the Amended Petition and all

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attachments thereto upon Respondent and Respondent's attorney, the Attorney General of the State

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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

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For the Northern District of California

United States District Court

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misconduct claim in his Amended Petition.

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Respondent is ordered to file an answer and supporting documents within sixty (60) days

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from the date of this Order. Respondent shall file with an answer a copy of all state records that

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have been transcribed previously and that are relevant to a determination of the issues presented by

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the Amended Petition.

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If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with the

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Court and serving it on Respondent within thirty (30) days of his receipt of the answer. Should

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Petitioner fail to do so, the Amended Petition will be deemed submitted and ready for decision

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thirty (30) days after the date Petitioner is served with Respondent's answer.

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4.

Connie Gipson, the current acting warden at California State Prison-Corcoran, has

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been substituted as Respondent in place of Petitioner's prior custodian pursuant to Rule 25(d) of the

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Federal Rules of Civil Procedure.

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5.

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IT IS SO ORDERED.

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DATED:

This Order terminates Docket nos. 6 and 10.

1/23/12
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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RALPH AVELINO AVALOS JR,
Case Number: CV11-03022 SBA
Plaintiff,

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For the Northern District of California

United States District Court

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CERTIFICATE OF SERVICE
v.
RAUL LOPEZ et al,
Defendant.

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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 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.

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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

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G:\PRO-SE\SBA\HC.11\Avalos3022.denyMTD-reinstateOSC.wpd

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