(HC) Hicks v. Burton ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CLIFTON ROBERT HICKS, No. 2:18-cv-2237 JAM DB P 12 Petitioner, 13 v. ORDER 14 ROBERT BURTON, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently before the court is respondent’s 19 motion to dismiss (ECF No. 16) and petitioner’s filing in response (ECF No. 18). For the reasons 20 set forth below, the court will direct petitioner to indicate how he would like to proceed with this 21 action. 22 I. Procedural History 23 Petitioner initiated this action by filing the petition on August 8, 2018.1 (ECF No. 1.) 24 Thereafter, petitioner filed a first amended petition. (ECF No. 7.) The court screened the petition 25 pursuant to 28 U.S.C. § 1915A(a) and directed respondent to file a responsive pleading. (ECF 26 27 1 Under the prison mailbox rule, a document is deemed served or filed on the date a prisoner signs the document and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276 28 (1988); Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 2010). 1 No. 10.) Respondent moved to dismiss the petition because it contains unexhausted claims. 2 (ECF No. 16.) In response, petitioner filed a motion seeking to delete the unexhausted claims. 3 (ECF No. 18.) 4 II. Motion to Dismiss 5 Petitioner is challenging his March 10, 2017 conviction and sentence in the Yolo County 6 Superior Court. (ECF No. 7 at 1.) Petitioner pled guilty to charges of robbery, evading a police 7 officer, attempted kidnapping, and infliction of a corporal injury on a spouse. (ECF No. 7 at 1.) 8 Petitioner raised four claims in the first amended petition, in claims one and two petitioner alleges 9 the trial court imposed an illegal sentencing enhancement and improperly enhanced his sentence 10 based on prior convictions that were unconstitutional. (ECF No. 7 at 17-18.) Petitioner’s other 11 two claims involve allegations that he is actually innocent of attempted kidnapping and inflicting 12 corporal injury on a spouse. (ECF No. 7 at 18-19.) 13 Respondent moves for dismissal of claims two through four on the grounds that petitioner 14 failed to exhaust state court remedies as to each of those claims. (ECF No. 16.) Respondent also 15 lodged2 state court documents showing that petitioner’s conviction was affirmed by the California 16 Court of Appeal and petitioner did not seek review in the California Supreme Court. (ECF No. 17 17; LD 2.) The lodged documents also show that petitioner filed one state habeas petition. (LD 18 3.) His petition was filed in the California Supreme Court on February 23, 2018 and denied on 19 July 25, 2018. (LD 3, 4.) The sole ground for relief in the petition alleged that the trial court 20 improperly imposed a sentence enhancement based on a prior conviction. (LD 3 at 3.) 21 Petitioner’s filing in response acknowledges that claims two through four are unexhausted 22 and he requests to dismiss those claims and proceed with his sole exhausted claim. (ECF No. 18.) 23 However, before the court grants petitioner’s request it will advise him of his options regarding 24 exhaustion and warn petitioner that deleting his unexhausted claims may prevent him from 25 bringing those claims in any future federal habeas proceedings. 26 //// 27 28 2 Each document is referenced herein by its Lodged Document (“LD”) number. 1 III. Discussion 2 There is no question that the exhaustion of state court remedies is a prerequisite to the 3 granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). “Under the exhaustion 4 requirement, a habeas petitioner challenging a state conviction must first attempt to present his 5 claim in state court.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also O’Sullivan v. 6 Boerckel, 526 U.S. 838, 845 (1999) (“the exhaustion doctrine is designed to give the state courts 7 a full and fair opportunity to resolve federal constitutional claims before those claims are 8 presented to the federal courts”). A petitioner satisfies the exhaustion requirement by providing 9 the highest state court with a full and fair opportunity to consider all claims before presenting 10 them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 11 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). For a California prisoner to 12 exhaust, he must present his claims to the California Supreme Court on appeal in a petition for 13 review or post-conviction in a petition for a writ of habeas corpus in which he adequately 14 describes the federal Constitutional issue that he asserts was violated. See Gatlin v. Madding, 15 189 F.3d 882, 888 (9th Cir. 1999). 16 The United States Supreme Court has held that a federal district court may not entertain a 17 petition for habeas corpus unless the petitioner has exhausted state remedies with respect to each 18 of the claims raised. Rose v. Lundy, 455 U.S. 509, 522 (1982). A mixed petition containing both 19 exhausted and unexhausted claims must be dismissed. Id. 20 Because the petition contains unexhausted claims, this court is required to give petitioner 21 the choice of exhausting the unexhausted claims by returning to state court or abandoning the 22 unexhausted grounds and pursuing the exhausted ground in federal court. Jefferson v. Budge, 23 419 F.3d 1013, 1016 (9th Cir. 2005); see also Butler v. Long, 752 F.3d 1177, 1181 (9th Cir. 24 2014), as amended on denial of reh’g and reh’g en banc, (June 24, 2014) (per curium) (district 25 court erred in dismissing the mixed habeas petition without first giving petitioner the opportunity 26 to amend his petition to include only exhausted claims). 27 Accordingly, petitioner must elect to proceed in one of two ways. First, petitioner may 28 choose to dismiss the entire petition without prejudice. However, petitioner is advised that 1 | dismissal of the present proceeding (even dismissal “without prejudice”) could contribute toward 2 || a statute of limitations bar against any federal petition he might subsequently file.* Should 3 | petitioner choose to pursue exhaustion he may also move for a stay of this action pursuant to 4 | either Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) or Rhines v. Weber, 544 U.S. 269 (1995). 5 Alternatively, petitioner may choose to file an amended petition raising only the exhausted 6 | claim. However, petitioner is cautioned that should he choose this alterative, he may risk 7 | forfeiting consideration of the unexhausted claims in this or any other federal habeas proceedings. 8 | See McCleskey v. Zant, 499 U.S. 467 (1991); see also Rose, 455 U.S. at 520-21; Rules 9 | Governing Section 2254 Cases, Rule 9(b). Petitioner may file a motion to amend the petition to 10 | add claims two through four once he exhausts state court remedies as to those claims. However, 11 | the court declines to address at this time whether such a motion would be appropriate or timely 12 | under Mayle v. Felix, 545 U.S. 644 (2005). 13 IV. Conclusion 14 Accordingly, PETITIONER IS HEREBY ORDERED TO advise the court, within thirty 15 | days of the date of service of this order, whether he wishes to return to state court to fully exhaust 16 | administrative remedies before proceeding with this action, or in the alternative, whether he 17 | wishes to proceed only on the exhausted portion of his petition. Petitioner is warned that failure 18 | to respond to the court’s order may result in a recommendation that this action be dismissed. 19 | Dated: October 24, 2019 20 21 BORAH BARNES DLE}? UNITED STATES MAGISTRATE JUDGE 23 DLB:1/Orders/Prisoner/Habeas/hick2237.mtd 24 3 In most cases, the one-year period will start to run on the date on which the state court judgment 25 became final by the conclusion of direct review or the expiration of time for seeking direct 26 | teview, although the statute of limitations is tolled while a properly filed application for state postconviction or other collateral review is pending. 28 U.S.C. § 2244(d). Although 28 U.S.C. § 27 || 2244(d)(2) tolls limitations during the pendency of “a properly filed application for State post- conviction or other collateral review,” limitations may not have been tolled during the pendency 28 | of the instant federal petition. See Duncan v. Walker, 533 U.S. 167 (2001).