Alvarez v. State of California

Filing 10

ORDER by Judge Ronald M. Whyte Granting 9 Motion to Dismiss; Requiring Election by Petitioner. (jg, COURT STAFF) (Filed on 10/25/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CHRISTIAN T. ALVAREZ,
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Petitioner,
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vs.
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M.D. MCDONALD, Warden,
Respondent.

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No. C 10-5744 RMW (PR)
ORDER GRANTING
RESPONDENT’S MOTION TO
DISMISS; REQUIRING
ELECTION BY PETITIONER

(Docket No. 9)

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Petitioner, a state prisoner proceeding pro se, filed a writ of habeas corpus pursuant to 28
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U.S.C. § 2254. The court ordered respondent to show cause why the petition should not be
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granted. Respondent has filed a motion to dismiss for failure to exhaust. Although given an
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opportunity, petitioner has not filed an opposition. For the reasons below, the court grants
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respondent’s motion to dismiss, but requires petitioner to elect how he wishes to proceed.
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BACKGROUND
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Petitioner challenges his 2008 criminal conviction and sentence in the Contra Costa
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County Superior Court. He filed a direct appeal to the California Court of Appeal, which
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affirmed the conviction and judgment. Petitioner filed a subsequent petition for review in the
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California Supreme Court, which denied the petition. The instant petition was filed on January
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10, 2011. In the petition, this court found that petitioner presented three cognizable claims:
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Order Granting Respondent’s Motion to Dismiss; Requiring Election by Petitioner
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(1) counsel was ineffective when counsel failed to object to evidence of a polygraph test; (2) the

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trial court erred in admitting irrelevant and prejudicial criminal gang evidence; and (3) the trial

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court erred by giving the jury an incomplete and confusing jury instruction on attempted murder.

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DISCUSSION

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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 claim

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they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The

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exhaustion-of-state-remedies doctrine reflects a policy of federal-state comity to give the state

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“the initial ‘opportunity to pass upon and correct alleged violations of its prisoners’ federal

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rights.’” Picard v. Connor, 404 U.S. 270, 275 (1971) (citations omitted). The exhaustion

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requirement is satisfied only if the federal claim has been “fairly presented” to the state courts.

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See id.; Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) (en banc). A federal

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district court must dismiss a federal habeas petition containing any claim as to which state

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remedies have not been exhausted. See Rhines v. Weber, 544 U.S. 269, 273 (2005).

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Respondent has attached a copy of petitioner’s petition for review to the California

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Supreme Court, which shows that petitioner only raised Claims 2 and 3 to the California

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Supreme Court. (Mot., Ex. B.) Petitioner did not raise his ineffective assistance of counsel

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claim for failure to object to evidence of a polygraph test in the California Supreme Court.

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Although petitioner did raise a claim that polygraph evidence was admitted in violation of his

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right to due process, that claim, as presented in his petition for review, was insufficient to

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exhaust his ineffective assistance of counsel claim. See Kelly v. Small, 315 F.3d 1063, 1068

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(9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007).

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Petitioner did not file a state habeas petition in the California Supreme Court. Nor has petitioner

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submitted any evidence to the contrary. Thus, it appears that petitioner has not fairly presented

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Claim 1 to the highest state court. Accordingly, the court GRANTS respondent’s motion to

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dismiss the petition as a “mixed” petition that contains both exhausted and unexhausted claims.
Order Granting Respondent’s Motion to Dismiss; Requiring Election by Petitioner
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See Rhines, 544 U.S. at 273.
Due to a critical one-year statute of limitations on the filing of federal habeas petitions

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under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), see 28 U.S.C.

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§ 2244(d), the court will not dismiss the mixed petition (and possibly cause a later-filed petition

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to be time-barred) without first giving petitioner the opportunity to elect whether to proceed with

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just his exhausted claims, or to try to exhaust the unexhausted claims before having this court

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consider his petition. Therefore, instead of an outright dismissal of the action, the court will

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allow petitioner to choose whether he wants to:

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(1) dismiss the unexhausted claim and go forward in this action with only the exhausted
claims; or
(2) dismiss this entire action and return to state court to exhaust all claims before filing a
new federal petition presenting all of his claims; or
(3) move to stay these proceedings while he exhausts his unexhausted claim in the
California Supreme Court.
In Rhines, the Supreme Court discussed the stay-and-abeyance procedure for mixed

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petitions. The Supreme Court cautioned district courts against being too liberal in allowing a

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stay because a stay works against several of the purposes of AEDPA in that it “frustrates

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AEDPA’s objective of encouraging finality by allowing a petitioner to delay the resolution of the

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

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

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federal petition.” Rhines, 544 U.S. at 277. 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 claims

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first in state court,” the claims are not meritless, and there are no intentionally dilatory litigation

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tactics by the petitioner. Id. at 277-78. Any stay must be limited in time to avoid indefinite

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delay. Id. Reasonable time limits would be thirty (30) days to proceed to state court and thirty

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(30) days to return to federal court after the final rejection of the claims by the state court. See

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id. at 278; Kelly, 315 F.3d at 1071.

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Order Granting Respondent’s Motion to Dismiss; Requiring Election by Petitioner
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Petitioner is cautioned that each of the three options outlined above has risks and

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drawbacks that he should take into account in deciding which one to choose. If he chooses

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option (1) and goes forward with only his exhausted claims, he may face dismissal of any

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later-filed petition challenging the underlying conviction and sentence. See 28 U.S.C. § 2244(b).

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If he chooses option (2), dismissing this action and returning to state court to exhaust all claims

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before filing a new federal petition, his new federal petition may be rejected as time-barred. See

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28 U.S.C. § 2244(d). If he chooses option (3), he must file a motion in this court to obtain a stay

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and demonstrate good cause for failing to exhaust. If the motion is granted, he then must act

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diligently to file a petition in the California Supreme Court and obtain a decision from that court

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on his unexhausted claim. Petitioner then must return to this court. Under option (3), this action

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stalls. This court will do nothing further to resolve the case while petitioner is diligently seeking

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relief in state court.

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CONCLUSION

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For the foregoing reasons, the court orders as follows:

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1.

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2.

Respondent’s motion to dismiss is GRANTED.
Within thirty (30) days of the date of this order, petitioner must serve and file a

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notice in which he states whether he elects to: (1) dismiss the unexhausted claim (Claim 1) and

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go forward in this action with only the exhausted claims (Claims 2-3); or (2) dismiss this action

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and return to state court to exhaust all of his claims before returning to federal court to present

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all of his claims in a new petition; or (3) move for a stay of these proceedings by demonstrating

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good cause while he exhausts his state court remedies for the unexhausted claim.

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If petitioner chooses option (1) or option (2), his filing need not be a long document; it is

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sufficient if he files a one-page document entitled “Election By Petitioner” and states simply:

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“Petitioner elects to proceed under option _____ provided in the court’s order dated _____.”

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Petitioner must insert a number in place of the blank space to indicate which of the first two

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options he chooses and insert the date of the court’s order.

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If petitioner chooses option (3), he must file a motion for a stay in which he must
demonstrate good cause by explaining why he failed to exhaust his unexhausted claim in state
Order Granting Respondent’s Motion to Dismiss; Requiring Election by Petitioner
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court before presenting it to this court, that his claims are not meritless, and that he is not

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intentionally delaying resolution of his constitutional claims.

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If petitioner does not choose one of the three options or file a motion within thirty
(30) days of the date of this order, the entire action will be dismissed.

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The clerk is directed to terminate docket number 9.

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IT IS SO ORDERED.

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DATED: _______________
RONALD M. WHYTE
United States District Judge

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Order Granting Respondent’s Motion to Dismiss; Requiring Election by Petitioner
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

CHRISTIAN T ALVAREZ,

Case Number: CV10-05744 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
STATE OF CALIFORNIA 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 October 25, 2011, 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.

Christian T Alvarez G-22117
Corcoran State Prison
PO Box 3466
Corcoran, CA 93212
Dated: October 25, 2011
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk