Mitchell v. Small

Filing 2

Notice Regarding Possible Failure to Exhaust and One-Year Statute of Limitations. Signed by Magistrate Judge Bernard G. Skomal on 8/10/2010.(All non-registered users served via U.S. Mail Service)(jer)

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 e titio n e r, 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 ND IS ISSUED IN EVERY CASE REGARDLESS OF WHETHER THE PETITIONER ALLEGES FULL

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

LAMONTI MITCHELL, Petitioner, v. LARRY SMALL, Warden, Respondent.

Civil No.

10-1639 BTM (BGS)

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 e n e r a lly, 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 isc re tio n to deny a habeas application on the merits notwithstanding a petitioner's failure to f u lly exhaust state judicial remedies. See 28 U.S.C.A. § 2254(b)(2) (West 2006); Liegakos v. C o o k e , 106 F.3d 1381, 1388 (7th Cir. 1997). To exhaust state judicial remedies, a California s ta te prisoner must present the California Supreme Court with a fair opportunity to rule on the m erits of every issue raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); -1-

K : \ C O M M O N \ S K O M A L \ C a s e s \ H a b e a s \ 1 0 c v 1 6 3 9 _ e x h n o t.w p d , 8 1 2 1 0

10cv1639

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

G r a n b e rr y v. Greer, 481 U.S. 129, 133-34 (1987). The petitioner must have raised the very s a m 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 th a t an evidentiary ruling at a state court trial denied him the due process of law guaranteed by th e Fourteenth Amendment, he must say so, not only in federal court, but in state court." Id. at 366. O N E -Y E A R STATUTE OF LIMITATIONS F u r th e r, the Court cautions Petitioner that a one-year period of limitation applies to a p e titio n for a writ of habeas corpus by a person in custody pursuant to the judgment of a State c o u rt. 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 lu s io n of direct review or the expiration of the time for seeking s u c h review; (B ) the date on which the impediment to filing an application c re a te d by State action in violation of the Constitution or laws of the U n ite 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 in itia lly recognized by the Supreme Court, if the right has been n e w ly recognized by the Supreme Court and made retroactively a p p lic a b le to cases on collateral review; or (D ) the date on which the factual predicate of the claim or c la 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 2006). If the federal petition is filed after the statute o f 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] a re 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. 1 6 7 , 181-82 (2001). -2-

K : \ C O M M O N \ S K O M A L \ C a s e s \ H a b e a s \ 1 0 c v 1 6 3 9 _ e x h n o t.w p d , 8 1 2 1 0

10cv1639

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 O N C L U SIO N T h is Court has not yet determined whether or not all of Petitioner's claims have been e x h a u ste d . That determination will take place later in the proceedings. However, Petitioner s h o u 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 ee n exhausted, it may be too late to exhaust. Therefore, if a petitioner knows that one or more c laim s have not been exhausted, the petitioner should consider the options with respect to e x h a u stin g those claims. Those options include: (1 ) filing a request for voluntary dismissal of unexhausted claims and p ro c e e d in g in the current federal action with only the exhausted claims (If P e titio n e r chooses this option, his abandoned unexhausted claims may be forever b a rre d from federal court habeas review.); or (2 ) filing a request for dismissal without prejudice of the current federal a c tio n and going to state court to exhaust all unexhausted claims (Petitioner should c o n sid e r whether all of his federal claims will be barred by the one-year statute of lim itatio n s before choosing this option.). T h is Notice is not providing legal advice. It merely lists two of the options that may be a v a ilab le to petitioners who file unexhausted claims in federal court. The decision on how to p roc ee 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 I T IO N E R IS SO NOTIFIED. D A T E D : August 10, 2010 _________________________________________ B e rn a rd G. Skomal U n ite d States Magistrate Judge

K : \ C O M M O N \ S K O M A L \ C a s e s \ H a b e a s \ 1 0 c v 1 6 3 9 _ e x h n o t.w p d , 8 1 2 1 0

-3-

10cv1639