(HC) Murphy v. Moss ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TYRONE MURPHY, No. 2:19-cv-1808 KJN P 12 Petitioner, 13 v. ORDER 14 JOSEPH W. MOSS,1 15 Respondent. 16 17 Petitioner is a state prisoner, proceeding pro se, with an application for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2016 conviction. On November 19 15, 2019, respondent filed a motion to dismiss this action because the petition is not fully 20 exhausted. Petitioner has not filed an opposition to the motion. 21 Local Rule 230(l) provides in part: “Failure of the responding party to file written 22 opposition or to file a statement of no opposition may be deemed a waiver of any opposition to 23 the granting of the motion . . . .” Id. Rule 41(b) of the Federal Rules of Civil Procedure provides: 24 Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to 25 1 Petitioner is currently housed at Shafter Modified Community Correctional Facility, where 26 Joseph W. Moss is the Warden. Therefore, Warden Moss is substituted as respondent in this 27 matter. Fed. R. Civ. P. 25(d); see Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992). 28 1 dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any 2 dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as 3 an adjudication on the merits. 4 Id. 5 Here, petitioner filed two petitions for review in the California Supreme Court. (ECF 6 Nos. 16-5, 16-10.) As argued by respondent, however, in the two petitions for review, petitioner 7 did not raise federal ground: three (denial of discovery because the prosecutor failed to disclose 8 the identity of the process server and the investigating officer’s notes); four (a) (prosecutorial 9 misconduct because the prosecutor allegedly misstated what efforts the process server made to 10 locate the victim and knowingly used perjured testimony); and four (b) (trial counsel was 11 ineffective because he failed to object to the prosecutorial misconduct). (ECF Nos. 16-5, 16-10.)2 12 Thus, respondent argues that the instant federal petition is a “mixed petition,” because it contains 13 both exhausted and unexhausted claims. 14 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 15 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement 16 by providing the highest state court with a full and fair opportunity to consider all claims before 17 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. 18 Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). Here, although 19 petitioner has exhausted his first and second claims for relief, he failed to raise his third and 20 fourth claims in the California Supreme Court. Thus, his third and fourth claims are not 21 exhausted, and the instant petition is a mixed petition. 22 The United States Supreme Court has held that a federal district court may not entertain a 23 petition for habeas corpus unless the petitioner has exhausted state remedies with respect to each 24 of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982). A mixed petition containing both 25 exhausted and unexhausted claims must generally be dismissed, with leave to file an amended 26 2 In his petitions for review, petitioner did allege that the prosecutor failed to establish due 27 diligence in attempting to secure the victim’s presence at trial, but petitioner did not raise a discovery claim or argue prosecutorial misconduct based on the prosecutor knowingly allowing 28 perjured testimony. (ECF Nos. 16-5, 16-10.) 1 petition containing only exhausted claims. Alternatively, under Rhines v. Weber, 544 U.S. 269 2 (2005), a district court may, in limited circumstances, stay a mixed petition pending exhaustion of 3 unexhausted claims if: (1) “the petitioner had good cause for his failure to exhaust;” (2) “his 4 unexhausted claims are potentially meritorious;” and (3) “there is no indication that the petitioner 5 engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278. Granting a stay 6 under these circumstances requires that reasonable time limits be imposed. Id. at 277-78. 7 Therefore, petitioner is granted thirty days to file a request for stay in this action. The 8 request must address each Rhines factor set forth above. Thereafter, the court will determine 9 whether to stay this action pending a decision by the California Supreme Court on petitioner’s 10 third claim, or whether to dismiss the instant petition with leave to file an amended petition that 11 raises only exhausted claims.3 4 12 //// 13 //// 14 //// 15 //// 16 //// 17 //// 18 //// 19 3 Petitioner is cautioned that if this action proceeds on an amended petition raising only 20 exhausted claims he will risk forfeiting consideration of the unexhausted claim in this or any other federal court. See McCleskey v. Zant, 499 U.S. 467 (1991); see also Rose, 455 U.S. at 520- 21 21; Rule 9(b), Rules Governing Section 2254 Cases. 22 Petitioner is further cautioned that the habeas corpus statute imposes a one year statute of 23 limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one year period will start to run on the date on which the state court judgment became final by the 24 conclusion of direct review or the expiration of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for state post-conviction or other 25 collateral review is pending. 28 U.S.C. § 2244(d). 26 4 Petitioner is not required to await resolution of the pending motion to dismiss before returning 27 to state court to properly exhaust his state court remedies. In the event that petitioner exhausts any claims in the California Supreme Court prior to this court’s resolution of the pending motion, 28 petitioner is advised to file a notice of exhaustion in this court. 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Warden Joseph W. Moss is substituted as respondent; and 3 2. Petitioner shall file, within thirty days from the date of this order, a request to stay this 4 | action pursuant to Rhines v. Weber, 544 U.S. 269 (2005). Failure to comply with this order will 5 | result in a recommendation that this action be dismissed without prejudice. 6 | Dated: January 3, 2020 Fens Arn 8 KENDALL J. NE 9 /murp1808.46h.fte UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28