(HC) Carlock v. Covello ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN DASHWANE CARLOCK, No. 2:20-cv-2210 TLN KJN P 12 Petitioner, 13 v. ORDER 14 PATRICK COVELLO, 15 Respondent. 16 17 Petitioner is a state prisoner, proceeding pro se, with a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Presently before the court is respondent’s motion to dismiss the 19 petition for failure to exhaust state remedies. Petitioner’s amended petition is before the court. In 20 his pleading, petitioner avers that he “was mistakenly informed appellate counsel was proceeding 21 to file in Cal. Supreme Court. Until recently [petitioner] learned no such petition was filed.” 22 (ECF No. 13 at 3.) Petitioner seeks a stay to allow him to file in the California Supreme Court. 23 As explained below, petitioner is ordered to inform the court how he would like to proceed. 24 I. Exhaustion Standards 25 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 26 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived 27 28 1 explicitly by respondents’ counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may 2 not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the 3 highest state court with a full and fair opportunity to consider all claims before presenting them to 4 the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 5 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). For a California prisoner to 6 exhaust, he must present his claims to the California Supreme Court on appeal in a petition for 7 review or post-conviction in a petition for a writ of habeas corpus in which he adequately 8 describes the federal Constitutional issue that he asserts was violated. See Gatlin v. Madding, 9 189 F.3d 882, 888 (9th Cir. 1999). 10 II. Unexhausted Petition 11 Petitioner concedes that he has not filed his claims in the California Supreme Court. The 12 instant petition is unexhausted. Although petitioner claims to seek a stay, he failed to 13 demonstrate he is entitled to such a stay.2 Specifically, he failed to provide sufficient information 14 for the court to determine whether such a stay can be granted; for example, he fails to provide the 15 date of his conviction, and he does not indicate who told petitioner that appellate counsel was 16 filing in the California Supreme Court, or when petitioner was told such information. Petitioner 17 is advised of the following options. 18 III. Petitioner’s Options 19 The United States Supreme Court held that a federal district court may not entertain a 20 petition for habeas corpus unless the petitioner has exhausted state remedies with respect to each 21 of the claims raised. Rose v. Lundy, 455 U.S. 509, 522 (1982). Unexhausted petitions may, 22 under limited circumstances, be stayed pending state court exhaustion. Mena v. Long, 813 F.3d 23 907, 912 (9th Cir. 2016). The requirements for a stay are those set forth in Rhines v. Weber, 544 24 U.S. 269 (2005). Under Rhines, a district court may stay, in limited circumstances, a mixed 25 1 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. 26 § 2254(b)(2). 27 2 Petitioner is not required to await resolution of his request for stay in this action before 28 returning to state court to properly exhaust his state court remedies. 1 | petition pending exhaustion of unexhausted claims if: (1) the petitioner had good cause for his 2 | failure to exhaust; (2) his unexhausted claims are potentially meritorious; and (3) there is no 3 || indication that the petitioner engaged in intentionally dilatory litigation tactics. Id., 544 U.S. at 4 || 278. Each of these three conditions must be satisfied. Id. 5 The undersigned will entertain a motion for stay and abeyance if petitioner wishes to bring 6 || such a motion and believes he can make the showing required by Rhines. In the alternative, 7 || petitioner may withdraw this habeas petition and refile it once the California Supreme Court has 8 | ruled on petitioner’s constitutional claims.° 9 | II. Conclusion 10 Accordingly, IT IS HEREBY ORDERED that petitioner notify the court, within thirty 11 || days from the date of this order, which option he chooses. If he chooses to file a motion for stay 12 || under Rhines, he must address all three of the conditions required. Petitioner is cautioned that if 13 || he fails to choose one of the options set forth above, the undersigned will recommend that this 14 || action be dismissed as unexhausted. 15 || Dated: June 29, 2021 Keri) 6 AO 17 KENDALL J. NE /east2210-stay UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 |—§_ > Petitioner is cautioned that the habeas corpus statute imposes a one year statute of limitations 24 | 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 conclusion of 25 | direct review or the expiration of time for seeking direct review, although the statute of 26 | limitations is tolled while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d). Although § 2244(d)(2) provides for such statutory 27 || tolling, “[uJnder Duncan v. Walker, 533 U.S. 167 (2001), the filing of a petition for federal habeas corpus relief does not toll AEDPA’s statute of limitations. King v. Ryan, 564 F.3d 1133, 28 | 1141 (9th Cir. 2009).