Gonzalez v. Cain

Filing 29

ORDER: Petitioners Motion to Dismiss and Deem Refiled 28 is granted to the extent that the Clerk shall administratively close and reopen this case. The Court deems the Petition 2 refiled as of January 10, 2018. Petitioners supporting memorandum remains due March 12, 2018. Signed on 2/8/18 by Magistrate Judge Patricia Sullivan. **3 PAGE(S), PRINT ALL** (Gerardo Gonzalez, Prisoner ID: 18291335) (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
GERARDO GARCIA GONZALEZ,
Case No. 2:17-cv-00508-SU
Petitioner,
ORDER
v.
BRAD CAIN,
Respondent.
SULLIVAN, Magistrate Judge.
This 28 U.S.C. § 2254 habeas corpus case comes before the
Court on Respondent’s Motion to Dismiss and Deem Refiled (#28).
Petitioner, proceeding pro se, has not responded to the Motion,
leaving the Motion unopposed.
A

habeas

petitioner

must

exhaust

his

claims

by

fairly

presenting them to the state's highest court, either through a
direct appeal or collateral proceedings, before a federal court
will consider the merits of those claims. Rose v. Lundy, 455
U.S. 509, 519 (1982). "In general, a habeas petition should be
1 - ORDER

dismissed if a petitioner has failed to exhaust state remedies
as to even one claim." James v. Borg, 24 F.3d 20, 24 (9th Cir.
1994

(citing

Rose).

The

proper

time

to

determine

whether

a

petitioner has exhausted his state court remedies is at the time
he files his federal habeas corpus petition. Brown v. Maass, 11
F.3d 914, 915 (9th Cir. 1993). A habeas corpus action that is
filed prior to the completion of exhaustion should be dismissed
without prejudice. Davis v. Silva, 511 F.3d 1005, 1008 (9th Cir.
2008).
It is uncontroverted that at the time Petitioner filed this
federal

habeas

corpus

action,

the

appellate

judgment

in

his

post-conviction case had not yet issued.1 As a result, the case
is premature and subject to dismissal. To resolve this problem
in an efficient manner, Respondent asks the Court to Dismiss the
Petition without prejudice, deem the Petition refiled so as to
continue within the same case, and further deem the Petition
refiled

as

of

March

23,

2017

(one

day

after

the

appellate

judgment issued in Petitioner’s post-conviction case).
The Court allows the unopposed Motion to Dismiss without
prejudice

to

the

1

extent

that

it

shall

direct

the

Clerk

to

Pursuant to the Prison Mailbox Rule, Petitioner filed his Petition for Writ
of Habeas Corpus on March 14, 2017 when he signed the pleading. See Saffold

2 - ORDER

administratively close and reopen this case. This will avoid the
somewhat cumbersome steps associated with either directing the
Clerk to transfer various documents to a new case, or requiring
Petitioner to file a new case altogether. The Petition is deemed
refiled as of January 10, 2018, the date of Respondent’s Motion.2
CONCLUSION
Petitioner’s Motion to Dismiss and Deem Refiled (#28) is
granted

to

the

extent

that

the

Clerk

shall

administratively

close and reopen this case. The Court deems the Petition (#2)
refiled

as

of

January

10,

2018.

Petitioner’s

supporting

memorandum remains due March 12, 2018.
IT IS SO ORDERED.
DATED this

8th

day of February, 2018.
/s/ Patricia Sullivan
__________________________________
Patricia Sullivan
United States Magistrate Judge

v. Newland, 224 F.3d 1087, 1091 (9th Cir. 2000). His PCR appellate judgment
did not become effective until March 22, 2017. Respondent’s Exhibit 133.
2
The Court notes that Respondent appears to waive any statute of limitations
argument where he: (1) asks the Court to recognize March 23, 2017 as the
filing date for this action; and (2) has not raised a statute of limitations
defense in his Answer or Response to the Petition.

3 - ORDER