Gonzalez Figeroa v. Montgomery et al

Filing 11

REPORT AND RECOMMENDATION For Order Dismissing Unexhausted Claim re 1 Petition for Writ of Habeas Corpus, filed by Alberto Gonzalez Figeroa. Objections to R&R due by 4/27/2018 Replies due by 5/11/2018. Signed by Magistrate Judge Jill L. Burkhardt on 3/30/18.(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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ALBERTO GONZALEZ FIGEROA,

Case No.: 17-cv-2572-GPC (JLB)

Petitioner,

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REPORT AND RECOMMENDATION
FOR ORDER DISMISSING
UNEXHAUSTED CLAIM

v.
WARREN L. MONTGOMERY, et al.,
Respondents.

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This Report and Recommendation is submitted to United States District Judge

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Gonzalo P. Curiel pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the

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United States District Court for the Southern District of California.

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I.

BACKGROUND

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Petitioner Alberto Gonzalez Figeroa is a state prisoner proceeding pro se with a

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Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. His Petition indicates

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that although Petitioner has presented claims one through three to the California Supreme

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Court, he has not presented his fourth claim to that Court. (ECF No. 1 at 6-9.) Petitioner’s

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fourth ground for relief is a claim that a juror whose nephew allegedly knew the victim

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should have been released from the jury. (Id. at 9.) The Petition indicates that this ground

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was not raised with the California Supreme Court and that there is not any petition or appeal

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now pending in any court, either state or federal, pertaining to this ground. (Id. at 9-10.)
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Having preliminarily determined the Petition contains unexhausted claims, on

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January 10, 2018, the Court issued a Notice Regarding Possible Dismissal of Petition for

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Failure to Exhaust State Court Remedies. (ECF No. 3.) The Notice required Petitioner to

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respond in one of four ways and notified Petitioner that if he failed to respond to the Notice

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by February 14, 2018 his Petition would be subject to dismissal. (Id. at 5.) Petitioner failed

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to respond by the deadline. On March 2, 2018, the Court issued a Second Notice Regarding

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Possible Dismissal of Petition for Failure to Exhaust State Court Remedies (“Second

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Notice”). (ECF No. 4.) The Second Notice again required Petitioner to respond in one of

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the following four ways to the Court’s notice of possible failure to exhaust: (1) file further

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papers with this Court to demonstrate that he has in fact exhausted claim four; (2) move to

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voluntarily dismiss his entire federal petition and return to state court to exhaust his

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unexhausted claim; (3) formally abandon his unexhausted claim four and proceed with his

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exhausted ones; or (4) file a motion to stay this federal proceeding while he returns to state

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court to exhaust his unexhausted claim. (Id. at 2-6.) The Second Notice cautioned

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Petitioner that if “he abandons his unexhausted claim, he may lose the ability to ever raise

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it in federal court.” (Id. at 4.)

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On March 14, 2018, Petitioner filed a Reply to the Second Notice indicating that

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Petitioner elects to formally abandon his unexhausted fourth claim and proceed with his

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exhausted claims. (ECF No. 7 at 1.) Petitioner indicated that he is “aware of losing my

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ability to ever raise my unexhausted claim in federal court again.” (Id.) On March 28,

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2018, Defendants filed a Notice of Non-Opposition to Petitioner’s Reply to the Second

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Notice. (ECF No. 10.)

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II.

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Generally, a habeas petition brought under 28 U.S.C. § 2254 may “not be granted

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unless it appears that . . . the applicant has exhausted the remedies available in the courts

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of the State.” 28 U.S.C. § 2254(b)(1). This exhaustion requirement exists as a matter of

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federal-state comity and assures the state courts of the “initial ‘opportunity to pass upon

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and correct’ alleged violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S.

FAILURE TO EXHAUST

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270, 275 (1971) (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). To exhaust

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state judicial remedies, a federal habeas petitioner must present the highest state court

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available with a fair opportunity to rule on the merits of every issue raised in his federal

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habeas petition. See 28 U.S.C. § 2254(b), (c); O’Sullivan v. Boerckel, 526 U.S. 838, 845

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(1999). Thus, in California, petitioners are required to exhaust their habeas claims in a

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petition to the California Supreme Court. See Gatlin v. Madding, 189 F.3d 882, 888 (9th

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Cir. 1999) (applying O’Sullivan to California).

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Over thirty years ago, the United States Supreme Court interpreted the exhaustion

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requirement to require district courts to dismiss federal habeas petitions that contained even

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one unexhausted claim. Rose v. Lundy, 455 U.S. 509, 510 (1982). However, Lundy was

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decided at a time when there was no statute of limitations on filing federal habeas petitions,

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and petitioners could return to federal court after exhausting their unexhausted claims to

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“present their perfected petitions with relative ease.” Mena v. Long, 813 F.3d 907, 909

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(9th Cir. 2016) (quoting Doe v. Jones, 762 F.3d 1174, 1177 (10th Cir. 2014)). After the

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AEDPA established a one-year statute of limitations for federal habeas petitions,

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petitioners who brought unexhausted claims to federal court faced the possibility that they

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would have insufficient time to exhaust those claims in state court and then return to federal

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court. Id. The Supreme Court confronted this issue in Rhines v. Weber, where it held that

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under certain circumstances, district courts may stay mixed federal habeas petitions—those

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containing both exhausted and unexhausted claims—to allow petitioners to present their

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unexhausted claims to the state courts without losing their place in federal court. Id. (citing

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Rhines, 544 U.S. at 275–77).

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Instead of requesting a stay of a mixed petition, a petitioner may elect to abandon

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his unexhausted claims and proceed with the exhausted claims. When a stay is not issued,

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“the court should allow the petitioner to delete the unexhausted claims and to proceed with

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the exhausted claims if dismissal of the entire petition would unreasonably impair the

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petitioner’s right to obtain federal relief.” Rhines v. Weber, 544 U.S. 269, 278 (2005). See

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also Rose, 455 U.S. 509, 520 (1982) (noting that a petitioner “can always amend the
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petition to delete the unexhausted claims, rather than returning to state court exhaust all of

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his claims”). However, “a prisoner who decides to proceed only with his exhausted claims

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and deliberately sets aside his unexhausted claims risks dismissal of subsequent petitions.”

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Rose, 455 U.S. at 521.

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Here, Petitioner opted to formally abandon his fourth unexhausted claim and proceed

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with only the claims the Petition indicates have been exhausted. (ECF No. 7 at 1.) The

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Court finds that Petitioner should be able to pursue his facially unexhausted claims in this

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action by abandoning his unexhausted claim.

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Petitioner’s fourth ground for relief be deemed abandoned and DISMISSED.

Accordingly, the Court recommends

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III.

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For the reasons outlined above, IT IS HEREBY RECOMMENDED that the Court

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issue an Order: (1) approving and adopting this Report and Recommendation, and (2)

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directing that Petitioner’s fourth unexhausted claim be deemed abandoned and

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DISMISSED.

CONCLUSION

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IT IS HEREBY ORDERED that no later than April 27, 2018, any party to this

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action may file written objections with the Court and serve a copy on all parties. The

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document should be captioned “Objections to Report and Recommendation.”

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IT IS FURTHER ORDERED that any reply to the objections shall be filed with

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the Court and served on all parties no later than May 11, 2018. The parties are advised

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that failure to file objections with the specified time may waive the right to raise those

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objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th

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Cir. 1998); Martinez v. Ylst, F.2d 1153, 1156 (9th Cir. 1991).

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Dated: March 30, 2018

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