Chilcote v. Unknown

Filing 2

ORDER DISMISSING CASE Without Prejudice and With Leave to Amend; and Notifying Petitioner of Options to Cure Failure to Exhaust State Court Remedies. If Petitioner wishes to proceed with this case he must, no later than March 20, 2017: (1) pay the $5.00 filing fee or submit adequate proof of his inability to pay the fee; (2) file a First Amended Petition that names a proper respondent. Signed by Judge Gonzalo P. Curiel on 1/12/17.(All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RYAN CHILCOTE,

Case No.: 17cv0061 GPC (PCL)
Petitioner,

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v.

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ORDER: (1) DISMISSING CASE
WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND; and (2)
NOTIFYING PETITIONER OF
OPTIONS TO CURE FAILURE TO
EXHAUST STATE COURT
REMEDIES

UNKNOWN,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
FAILURE TO SATISFY FILING FEE REQUIREMENT
Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in

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forma pauperis. This Court cannot proceed until Petitioner has either paid the $5.00

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filing fee or qualified to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foll. § 2254.

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FAILURE TO NAME A PROPER RESPONDENT

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Review of the Petition reveals that Petitioner has failed to name a proper

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respondent. On federal habeas, a state prisoner must name the state officer having

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custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.

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1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction

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when a habeas petition fails to name a proper respondent. See id.

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The warden is the typical respondent. However, “the rules following section 2254

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do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the

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warden of the institution in which the petitioner is incarcerated . . . or the chief officer in

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charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254

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advisory committee’s note). If “a petitioner is in custody due to the state action he is

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challenging, ‘[t]he named respondent shall be the state officer who has official custody of

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the petitioner (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C.

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foll. § 2254 advisory committee’s note).

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A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a

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writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is

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in custody. The actual person who is [the] custodian [of the petitioner] must be the

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respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement

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exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the

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person who will produce “the body” if directed to do so by the Court. “Both the warden

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of a California prison and the Director of Corrections for California have the power to

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produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895.

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Here, Petitioner has not named a Respondent. In order for this Court to entertain

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the Petition filed in this action, Petitioner must name the warden in charge of the state

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correctional facility in which Petitioner is presently confined or the Secretary of the

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California Department of Corrections and Rehabilitation. Brittingham v. United States,

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982 F.2d 378, 379 (9th Cir. 1992) (per curiam).

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FAILURE TO ALLEGE EXHAUSTION AS TO ALL CLAIMS

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Petitioner is required to demonstrate exhaustion of his state judicial remedies. See

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Rose v. Lundy, 455 U.S. 509, 522 (1982). Petitioner has not alleged exhaustion as to

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claims two through four. (See Pet. at 5.)

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The exhaustion requirement is satisfied by providing the state courts with a “fair

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opportunity” to rule on Petitioner’s constitutional claims. Anderson v. Harless, 459 U.S.

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4, 6 (1982). In most instances, a claim is exhausted once it is presented to a state’s

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highest court, either on direct appeal or through state collateral proceedings. See

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Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002). The constitutional claim raised

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in the federal proceedings must be the same as that raised in the state proceedings. See

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id. Here, Petitioner’s claims two through four appear to be unexhausted.

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PETITIONER’S OPTIONS

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As discussed above, the Petition is dismissed because Petitioner has failed to

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satisfy the filing fee requirement and has failed to name a proper Respondent. Once

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Petitioner cures those deficiencies, in order to prevent the Petition from remaining

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dismissed, Petitioner must choose one of the following options.

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i) First Option: Demonstrate Exhaustion

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If Petitioner may file further papers with this Court to demonstrate that he has in

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fact exhausted the claims the Court has determined are likely unexhausted. If Petitioner

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chooses this option, his papers are due no later than March 20, 2017. Respondent may

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file a reply by April 19, 2017.

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ii) Second Option: Voluntarily Dismiss the Petition

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Petitioner may move to voluntarily dismiss his entire federal petition and return to

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state court to exhaust his unexhausted claims. Petitioner may then file a new federal

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petition containing only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 520-21

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(stating that a petitioner who files a mixed petition may dismiss his petition to “return[] to

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state court to exhaust his claims”). If Petitioner chooses this second option, he must file a

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pleading with this Court no later than March 20, 2017. Respondent may file a reply by

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April 19, 2017.

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Petitioner is cautioned that any new federal petition must be filed before expiration

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of the one-year statute of limitations. Ordinarily, a petitioner has one year from when his

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conviction became final to file his federal petition, unless he can show that statutory or
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equitable “tolling” applies. Duncan v. Walker, 533 U.S. 167, 176 (2001); 28 U.S.C.

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§ 2244(d). The statute of limitations does not run while a properly filed state habeas

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corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003,

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1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an

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application is ‘properly filed’ when its delivery and acceptance [by the appropriate court

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officer for placement into the record] are in compliance with the applicable laws and

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rules governing filings.”); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding

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that a state application for post-conviction relief which is ultimately dismissed as

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untimely was neither “properly filed” nor “pending” while it was under consideration by

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the state court, and therefore does not toll the statute of limitations), as amended 439 F.3d

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993. However, absent some other basis for tolling, the statute of limitations continues to

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run while a federal habeas petition is pending. Duncan, 533 U.S. at 181-82.

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iii) Third Option: Formally Abandon Unexhausted Claim(s)

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Petitioner may formally abandon his unexhausted claims and proceed with his

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exhausted ones. See Rose, 455 U.S. at 510, 520-21 (stating that a petitioner who files a

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mixed petition may “resubmit[] the habeas petition to present only exhausted claims”). If

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Petitioner chooses this third option, he must file a pleading with this Court no later than

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March 20, 2017. Respondent may file a reply by April 19, 2017.

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Petitioner is cautioned that once he abandons his unexhausted claim(s), he may

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lose the ability to ever raise it/them in federal court. See Slack v. McDaniel, 529 U.S.

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473, 488 (2000) (stating that a court’s ruling on the merits of claims presented in a first

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§ 2254 petition renders any later petition successive); see also 28 U.S.C. § 2244 (a)-(b).

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iv) Fourth Option: File a Motion to Stay the Federal Proceedings

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Petitioner may file a motion to stay this federal proceeding while he returns to state

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court to exhaust his unexhausted claims. There are two methods available to Petitioner,

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the “stay and abeyance” procedure and the “withdrawal and abeyance” procedure.

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If Petitioner wishes to use the “stay and abeyance” procedure he should ask the

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Court to stay his mixed petition while he returns to state court to exhaust. Under this
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procedure he must demonstrate there are arguably meritorious claims which he wishes to

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return to state court to exhaust, that he is diligently pursuing his state court remedies with

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respect to those claims, and that good cause exists for his failure to timely exhaust his

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state court remedies. Rhines v. Webber, 544 U.S. 269, 277-78 (2005).

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If Petitioner wishes to use the “withdrawal and abeyance” procedure, he must

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voluntarily withdraw his unexhausted claims, ask the Court to stay the proceedings and

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hold the fully-exhausted petition in abeyance while he returns to state court to exhaust,

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and then seek permission to amend his petition to include the newly exhausted claims

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after exhaustion is complete. King v. Ryan, 564 F.3d 1133, 1141-42 (9th Cir. 2009).

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Although under this procedure Petitioner is not required to demonstrate good cause for

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his failure to timely exhaust, the newly exhausted claims must be either timely under the

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statute of limitations or “relate back” to the claims in the fully-exhausted petition, that is,

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they must share a “common core of operative facts” with the previously exhausted

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claims. Id. at 1142-43, quoting Mayle v. Felix, 545 U.S. 644. 659 (2005).

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If Petitioner chooses this fourth option, he must file a pleading with this Court no
later than March 20, 2017. Respondent may file a reply by April 19, 2017.

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CONCLUSION

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Accordingly, the Court DISMISSES this case without prejudice and with leave to

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amend. If Petitioner wishes to proceed with this case he must, no later than March 20,

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2017: (1) pay the $5.00 filing fee or submit adequate proof of his inability to pay the fee;

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(2) file a First Amended Petition that names a proper respondent; and (3) choose one of

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the options listed above. The Clerk of Court is directed to mail Petitioner a blank

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motion to proceed in forma pauperis form and a blank First Amended Petition form

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together with a copy of this Order.

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IT IS SO ORDERED.

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Dated: January 12, 2017

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