Zaragoza v. Martel et al

Filing 13

ORDER (1) Adopting In Part and Rejecting In Part (Doc. 12 ) Magistrate Judge's Report and Recommendation, (2) Providing Options, and (3) Denying (Doc. 8 ) Respondent's Motion To Dismiss Without Prejudice. Petitioner shall inform the Cour t of his decision to file a motion to stay by 9/27/2010. If Petitioner fails to respond to this Order, the Petition will be dismissed without prejudice. Signed by Judge Dana M. Sabraw on 8/26/2010. (All non-registered users served via U.S. Mail Service) (srm)

Zaragoza v. Cate et al

Doc. 13

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 On July 22, 2009, Petitioner Paul Zaragoza ("Petitioner"), a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 9, 2009, Respondent filed a motion to dismiss the petition on the grounds that some of Petitioner's claims were unexha u st ed. On July 6, 2010, Magistrate Judge William McCurine, Jr. issued a Report and MATTHEW CATE, Respondent. vs. PAUL ZARAGOZA AKA G. GARCIA, Petitioner, ORDER (1) ADOPTING IN PART AND REJECTING IN PART MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, (2) PROVIDING OPTIONS, AND (3) DENYING RESPONDENT'S MOTION TO DISMISS WITHOUT PREJUDICE [Docket Nos. 8, 12] CASE NO. 09cv1598 DMS (WMC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Recommendation, recommending that the Court (1) find the petition is "mixed," i.e., it contains exhausted and unexhausted claims, (2) provide Petitioner with a list of options on how to proceed, and (3) grant the motion to dismiss. This Court, having reviewed de novo the Magistrate Judge's Report, and there being no objections filed thereto, adopts in part and denies in part the recommendation. /// -1-

09cv1598

Dockets.Justia.com

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In light of the Court's finding that the petition is mixed, Petitioner may choose one of the following options. 1) Demonstrate Exhaustion Petitioner may file further papers with this Court to demonstrate that he has in fact exhausted claims I.A., I.B., II and III.A. 2) Voluntarily Dismiss the Petition Petitioner may move to voluntarily dismiss his entire federal petition and return to state court to exhaust his unexhausted claims. Petitioner may then file a new federal petition containing only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 520-21 (stating that a petitioner who files a mixed petition may dismiss his petition to "return[] to state court to exhaust his claims"). Petitioner is cautioned that any new federal petition must be filed before expiration of the oneyear statute of limitations. Ordinarily, a petitioner has one year from when his conviction became final to file his federal petition, unless he can show that statutory or equitable tolling applies. Duncan v. Walker, 533 U.S. 167, 176 (2001); 28 U.S.C. § 2244(d).1 The 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). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that "an application is `properly filed' when 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."); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding that a state application for post28 U.S.C. § 2244 (d) provides: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of­ (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgement or claim is pending shall not be counted toward any period of limitation under this subsection. -209cv1598
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conviction relief which is ultimately dismissed as untimely was neither "properly filed" nor "pending" while it was under consideration by the state court, and therefore does not toll the statute of limitations), as amended 439 F.3d 993. However, absent some other basis for tolling, the statute of limitations continues to run while a federal habeas petition is pending. Duncan, 533 U.S. at 181-82. 3) Formally Abandon Unexhausted Claims Petitioner may formally abandon his unexhausted claims and proceed with his exhausted claim. See Rose, 455 U.S. at 510, 520-21 (stating that a petitioner who files a mixed petition may "resubmit[] the habeas petition to present only exhausted claims"). Petitioner is cautioned that once he abandons his unexhausted claims, he may lose the ability to ever raise those claims in federal court. See Slack v. McDaniel, 529 U.S. 473, 488 (2000) (stating that a court's ruling on the merits of claims presented in a first § 2254 petition renders any later petition successive); see also 28 U.S.C. § 2244 (a)-(b).2 4) File a Motion to Stay the Federal Proceedings Petitioner may file a motion to stay this federal proceeding while he returns to state court to exhaust his unexhausted claims. There are two methods available to Petitioner, the "stay and abeyance" procedure and the "withdrawal and abeyance" procedure. If Petitioner wishes to use the "stay and abeyance" procedure he should ask the Court to stay his mixed petition while he returns to state court to exhaust. Under this procedure he must demonstrate there are arguably meritorious claim(s) which he wishes to return to state court to exhaust, that he is diligently pursuing his state court remedies with respect to those claim(s), and that good cause exists for his failure to timely exhaust his state court remedies. Rhines v. Webber, 544 U.S. 269, 277-78 (2005). 28 U.S.C. § 2244(b)(2) provides that a claim presented in a second or successive habeas corpus application under § 2254 shall be dismissed unless: (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. -309cv1598
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/// If Petitioner wishes to use the "withdrawal and abeyance" procedure, he must voluntarily withdraw his unexhausted claim, ask the Court to stay the proceedings and hold the fully-exhausted petition in abeyance while he returns to state court to exhaust, and then seek permission to amend his petition to include the newly exhausted claim(s) after exhaustion is complete. King v. Ryan, 564 F.3d 1133 (9th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 214 (2009). Although under this procedure Petitioner is not required to demonstrate good cause for his failure to timely exhaust, the newly exhausted claim(s) must either be timely under the statute of limitations or "relate back" to the claims in the fully-exhausted petition, that is, they must share a "common core of operative facts" with the previously exhausted claims. King, 564 F.3d at1143 (quoting Mayle v. Felix, 545 U.S. 644. 659 (2005)). Petitioner shall inform the Court of his decision on or before September 27, 2010. Upon receipt of Petitioner's response, the Court will invite Respondent to file an appropriate response. If Petitioner fails to respond to this Order, the Petition will be dismissed without prejudice.3 See Rose, 455 U.S. at 522. In light of these options, Respondent's motion to dismiss is denied without prejudice. IT IS SO ORDERED. DATED: August 26, 2010

HON. DANA M. SABRAW United States District Judge

Although the dismissal is "without prejudice," Petitioner is again cautioned that any later federal petition may be barred by the statute of limitations. See 28 U.S.C. § 2244(d)(1)-(2); see also footnote two of this Order. -409cv1598

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