Williams v. Felker

Filing 3

Notice regarding possible failure to exhaust and one year statute of limitations. Signed by Judge Cathy Ann Bencivengo on 9/26/06. (r1r)

Williams v. Felker

Doc. 3

Case 3:06-cv-01976-H-PCL

Document 3

Filed 09/26/2006

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P etitio n er, a state prisoner, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U . S. C . § 2254. THIS NOTICE PROVIDES IMPORTANT INFORMATION RELATING TO PETITIONS
A N D IS ISSUED IN EVERY CASE REGARDLESS OF WHETHER THE PETITIONER ALLEGES FULL

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

TRIMEL EDWARD WILLIAMS, Petitioner, v. TOM FELKER, Warden, Respondent.

Civil No.

06cv1976-H (CAB)

NOTICE REGARDING POSSIBLE FAILURE TO EXHAUST AND ONEYEAR STATUTE OF LIMITATIONS

E XHAUSTION OF STATE JUDICIAL REMEDIES. R E Q U I R E M E N T THAT PETITIONER EXHAUST STATE JUDICIAL REMEDIES G en er all y, applications for writs of habeas corpus that contain unexhausted claims must b e dismissed. See Rose v. Lundy, 455 U.S. 509, 522 (1982). However, federal courts have the d i s c re t i o n to deny a habeas application on the merits notwithstanding a petitioner's failure to fully exhaust state judicial remedies. See 28 U.S.C.A. § 2254(b)(2) (W e s t Supp. 2006); L i e g a k o s v. Cooke, 106 F.3d 1381, 1388 (7th Cir. 1997). To exhaust state judicial remedies, a C a l i f o r n i a state prisoner must present the California Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), -1-

06cv1976

Dockets.Justia.com

Case 3:06-cv-01976-H-PCL

Document 3

Filed 09/26/2006

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). The petitioner must have raised the very s am e federal claims brought in the federal petition before the state supreme court. See Duncan v . Henry, 513 U.S. 364, 365-66 (1995). For example, "[i]f a habeas petitioner wishes to claim t h a t an evidentiary ruling at a state court trial denied him the due process of law guaranteed by t h e Fourteenth Amendment, he must say so, not only in federal court, but in state court." Id. at 366. O N E - YE A R STATUTE OF LIMITATIONS F u rth er, the Court cautions Petitioner that a one-year period of limitation applies to a p e t i ti o n for a writ of habeas corpus by a person in custody pursuant to the judgment of a State c o u r t . The limitation period begins to run on the latest of: ( A ) the date on which the judgment became final by the c o n c l u s io n of direct review or the expiration of the time for seeking s uc h review; ( B ) the date on which the impediment to filing an application c r e a te d by State action in violation of the Constitution or laws of the U n i t e d States is removed, if the applicant was prevented from filing b y such State action; ( C ) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been new ly recognized by the Supreme Court and made retroactively a p p l i ca b l e to cases on collateral review; or ( D ) the date on which the factual predicate of the claim or c l a im s presented could have been discovered through the exercise o f due diligence. 2 8 U.S.C.A. § 2244(d)(1)(A)-(D) (West Supp. 2006). If the federal petition is filed after the s t a tu t e of limitations has run, the petition will be summarily dismissed. T h e statute of limitations does not run while a properly filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). B u t see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that "an application is `properly filed' w h e n its delivery and acceptance [by the appropriate court officer for placement into the record] are in compliance with the applicable laws and rules governing filings."). However, the filing o f a federal habeas petition does not toll the statute of limitations. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). -2-

06cv1976

Case 3:06-cv-01976-H-PCL

Document 3

Filed 09/26/2006

Page 3 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 D A T E D : September 26, 2006 25 26 27 28

C O N C L U S IO N This Court has not yet determined whether or not all of Petitioner's claims have been e x h a u s t e d . That determination will take place later in the proceedings. However, Petitioner shou ld consider that if state court remedies have not been exhausted, "the clock may be ticking" o n his one-year statute of limitations, and/or that the one-year period may have already expired. If a petitioner waits until this Court determines whether all claims contained in a petition have b e e n exhausted, it may be too late to exhaust. Therefore, if a petitioner knows that one or more c la im s have not been exhausted, the petitioner should consider the options with respect to exh aus ting those claims. Those options include: ( 1 ) filing a request for voluntary dismissal of unexhausted claims and p r o c e e di n g in the current federal action with only the exhausted claims (If P e t i ti o n e r chooses this option, his abandoned unexhausted claims may be forever b a r r e d from federal court habeas review.); or ( 2 ) filing a request for dismissal without prejudice of the current federal a c t io n and going to state court to exhaust all unexhausted claims (Petitioner should c o n s i d e r whether all of his federal claims will be barred by the one-year statute of limitatio n s before choosing this option.). This Notice is not providing legal advice. It merely lists two of the options that may be availa ble to petitioners who file unexhausted claims in federal court. The decision on how to procee d is solely and exclusively up to Petitioner. I F PETITIONER IS CERTAIN HIS FEDERAL PETITION CONTAINS ONLY EXHAUSTED C LAIM S, HE NEED NOT TAKE ANY FURTHER ACTION. P E T IT I O N ER IS SO NOTIFIED.

C A T H Y ANN BENCIVENGO U n i t e d States Magistrate Judge

-3-

06cv1976