Torres v. Madden

Filing 2

ORDER (1) DISMISSING CASE without Prejudice, And (2) Giving Notice of Options Due to Failure to Exhaust State Court Remedies. It is ordered that the Court dismisses this case without prejudice. If petitioner wishes to proceed with this case, he mus t, no later than 7/7/2017: (1) pay the $5.00 filing fee or submit adequate proof of his inability to pay the fee; and (2) choose one of the options outlined above. Petitioner is cautioned that if he fails to respond to this Order, the petition will remain dismissed without prejudice. Signed by Judge Janis L. Sammartino on 5/9/2017.(All non-registered users served via U.S. Mail Service) (Mailed out IFP application.) (dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MIGUEL ANGEL TORRES,

Case No. 17cv0865 JLS (PCL)
Petitioner,

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ORDER (1) DISMISSING CASE
WITHOUT PREJUDICE, AND (2)
GIVING NOTICE OF OPTIONS DUE
TO FAILURE TO EXHAUST STATE
COURT REMEDIES

v.
RAYMOND MADDEN, Warden,
Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254.
FAILURE TO SATISFY THE FILING FEE REQUIREMENT

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Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in

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forma pauperis. Because 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, the Court DISMISSES the case

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WITHOUT PRJEUDICE. See Rule 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to

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proceed with this case, he must submit, no later than July 7, 2017, a copy of this Order

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with the $5.00 fee or with adequate proof of his inability to pay the fee.

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17cv0865 JLS (PCL)

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FAILURE TO ALLEGE EXHAUSTION OF STATE COURT REMEDIES AS TO

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ALL CLAIMS IN THE PETITION

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In addition, habeas petitioners who wish to challenge either their state court

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conviction or the length of their confinement in state prison must first exhaust state judicial

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remedies. 28 U.S.C. §§ 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133–34 (1987).

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To exhaust state judicial remedies, a California state prisoner must present the California

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Supreme Court with a fair opportunity to rule on the merits of every issue raised in his or

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her federal habeas petition. 28 U.S.C. §§ 2254(b), (c); Granberry, 481 U.S. at 133–34.

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Moreover, to properly exhaust state court remedies a petitioner must allege, in state court,

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how one or more of his or her federal rights have been violated. The Supreme Court in

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Duncan v. Henry reasoned: “If state courts are to be given the opportunity to correct alleged

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violations of prisoners’ federal rights, they must surely be alerted to the fact that the

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prisoners are asserting claims under the United States Constitution.” 513 U.S. 364, 365–66

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(1995) (emphasis added). For example, “[i]f a habeas petitioner wishes to claim that an

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evidentiary ruling at a state court trial denied him [or her] the due process of law guaranteed

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by the Fourteenth Amendment, he [or she] must say so, not only in federal court, but in

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state court.” Id. at 366 (emphasis added).

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Of the five claims presented in the Petition, Petitioner indicates he has presented

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claims one, two, and three to the California Supreme Court, but has not indicated that he

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presented claims four and five to that court. (See Pet. at 20–26.) It appears, therefore, that

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Petitioner has filed a “mixed” petition; that is, one which presents both exhausted and

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unexhausted claims. In Rose v. Lundy, the United States Supreme Court held that a mixed

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petition is subject to dismissal because it violates the “total exhaustion rule” required in

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habeas petitions brought pursuant to § 2254, but that a petitioner must be permitted an

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opportunity to cure that defect prior to dismissal. 455 U.S. 509, 514–20 (1982).

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Having preliminarily determined the Petition contains unexhausted claims (grounds

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four and five) and exhausted claims (grounds one, two and three), the Court notifies

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Petitioner of his options.
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(i) First Option: Allege Exhaustion

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

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exhausted the claims the Court has determined are unexhausted. If Petitioner chooses this

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option, his papers are due no later than July 7, 2017. Respondent may file a reply by

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August 7, 2017.

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(ii) Second Option: Voluntarily Dismiss the Petition

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Petitioner may voluntarily dismiss his entire federal petition and return to state court

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to exhaust any unexhausted claim(s). He may thereafter file a new federal petition in this

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Court containing only exhausted claims. See Rose, 455 U.S. at 520–21 (stating that a

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petitioner who files a mixed petition may dismiss his petition to “return[] to state court to

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exhaust his claims”). If Petitioner chooses this option, he must file a pleading with this

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Court no later than July 7, 2017. Respondent may file a reply by August 7, 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).1 The statute of limitations does not run while a properly filed state habeas corpus

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28 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.

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petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th

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

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‘properly filed’ when its delivery and acceptance [by the appropriate court officer for

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placement into the record] are in compliance with the applicable laws and rules governing

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

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application for post-conviction relief which is ultimately dismissed as untimely was neither

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“properly filed” nor “pending” while it was under consideration by the state court, and

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therefore does not toll the statute of limitations), as amended 439 F.3d 993. However,

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absent some other basis for tolling, the statute of limitations continues to run while a federal

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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 claim(s) and proceed with his

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exhausted one(s). 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 option, he must file a pleading with this Court no later than July 7,

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2017. Respondent may file a reply by August 7, 2017.

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

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the ability to ever raise it/them in federal court. See Slack v. McDaniel, 529 U.S. 473, 488

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(2000) (stating that a court’s ruling on the merits of claims presented in a first § 2254

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petition renders any later petition successive); see also 28 U.S.C. § 2244 (a)–(b).2

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(2) The time during which a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this subsection.

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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

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

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Petitioner may, along with a First Amended Petition, file a motion to stay this federal

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proceeding while he returns to state court to exhaust his unexhausted claim(s). There are

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two methods potentially available to Petitioner, the “stay and abeyance” procedure and the

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“withdrawal and abeyance” procedure.

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

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to stay his mixed petition while he returns to state court to exhaust. Under this procedure

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he must demonstrate there are arguably meritorious claim(s) which he wishes to return to

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

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those claim(s), and that good cause exists for his failure to timely exhaust his state court

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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 claim(s), 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, and

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then seek permission to amend his petition to include the newly exhausted claim(s) after

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exhaustion is complete. King v. Ryan, 564 F.3d. 1133, 1135 (9th Cir. 2009). Although

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

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timely exhaust, the newly exhausted claim(s) must be either timely under the statute of

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limitations or “relate back” to the claim(s) in the fully-exhausted petition, that is, they must

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share a “common core of operative facts” with the previously exhausted claim(s). King,

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564 F.3d at 1141 (quoting Mayle v. Felix, 545 U.S. 644, 659 (2005)).

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If Petitioner choses this fourth option, he must file a pleading with this Court no later

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than July 7, 2017. Respondent may file a reply by August 7, 2017.

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(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.
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17cv0865 JLS (PCL)

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CONCLUSION AND ORDER

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For the foregoing reasons, the Court DISMISSES this case WITHOUT

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PREJUDICE. If Petitioner wishes to proceed with this case, he must, no later than July

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7, 2017: (1) pay the $5.00 filing fee OR submit adequate proof of his inability to pay the

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fee; AND (2) choose one of the options outlined above. Petitioner is cautioned that if he

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fails to respond to this Order, the Petition will remain dismissed without prejudice. 3 See

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Rose, 455 U.S. at 522.

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The Clerk of Court shall send a blank Southern District of California In Forma
Pauperis Application to Petitioner along with a copy of this Order.

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IT IS SO ORDERED.
Dated: May 9, 2017

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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, supra.
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17cv0865 JLS (PCL)