(HC) Castro v. Covello ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH A. CASTRO, No. 2:22-cv-2005 CKD P 12 Petitioner, 13 v. ORDER 14 PATRICK COVELLO, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with an amended petition for a writ of 18 habeas corpus (ECF No. 7) pursuant to 28 U.S.C. § 2254. 19 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 20 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement 21 by providing the highest state court with a full and fair opportunity to consider all claims before 22 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971). 23 Here, petitioner alleges he has exhausted state court remedies with respect to some, but 24 not all of his claims. The United States Supreme Court has held that a federal district court may 25 not entertain a petition for habeas corpus unless the petitioner has exhausted state remedies with 26 respect to each of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982). 27 Petitioner has three options. First, he may file a second amended petition omitting any 28 claims for which he has not exhausted state court remedies and the court will proceed on that 1 || petition. Second, he may seek a stay under Rhines v. Weber, 544 U.S. 269 (2005) while he 2 || exhausts state court remedies. In order to obtain a stay under Rhines, petitioner must show (1) 3 || good cause for his failure to previously exhaust state court remedies, and (2) any unexhausted 4 | claim is potentially meritorious. Rhines v. Weber, 544 U.S. at 278. Third, petitioner may file a 5 || second amended petition omitting any unexhausted claims and request a stay of the petition 6 || pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) until state court remedies have been 7 || exhausted as to all claims. 8 Petitioner is cautioned that if he chooses to proceed right now on a second amended 9 || petition raising only exhausted claims he will risk forfeiting consideration of the unexhausted 10 || claims in this or any other federal court. See McCleskey v. Zant, 499 U.S. 467 (1991); see also 11 | Rose, 455 U.S. at 520-21; Rule 9(b), Rules Governing Section 2254 Cases. 12 Petitioner is further cautioned that the habeas corpus statute imposes a one-year 13 || limitations period for filing non-capital habeas corpus petitions in federal court. In most cases, 14 || the one-year period will start to run on the date the state court judgment became final by the 15 || conclusion of direct review or the expiration of time for seeking direct review, although the 16 || statute of limitations is tolled while a properly filed application for state post-conviction or other 17 || collateral review is pending. 28 U.S.C. § 2244(d). 18 In accordance with the above, IT IS HEREBY ORDERED that petitioner is granted 30 19 || days to proceed in one of the three manners described above. Petitioner’s failure to avail himself 20 | of any option within 30 days will result in a recommendation that his habeas petition be dismissed 21 || and this case be closed. 22 | Dated: February 28, 2023 / ae / a ly. ae 8 CAROLYNK. DELANEY 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 | 1 2g cast2005.103mix