Lynch v. Lynch ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL ANTHONY LYNCH,1 Case No.: 21cv0421 CAB (JLB) 12 Petitioner, (1) ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE AND 14 JEFF LYNCH, Warden, et al., (2) NOTICE OF OPTIONS DUE TO 15 Respondent. FAILURE TO EXHAUST STATE COURT REMEDIES 16 17 On March 9, 2021, Petitioner, a state prisoner proceeding pro se, filed a Petition for 18 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (See ECF No. 1.) On March 12, 19 2021, the Court dismissed the case without prejudice for failing to satisfy the filing fee 20 requirement, for failing to use a complete petition form and for failing to submit a petition 21 signed under penalty of perjury. (See ECF No. 2.) Petitioner was instructed that to proceed 22 with the instant case, she must submit “(1) either the $5.00 fee or adequate proof of 23 Petitioner’s inability to pay the fee and (2) a completed First Amended Petition form signed 24 under penalty of perjury.” (Id. at 3.) On March 26, 2021, Petitioner filed an Amended 25 26 27 1 Petitioner indicates: “Ms. Lynch is ‘Transgender’ and uses female pronouns, request that all parties also use ‘female prouns’ [sic] (Thank you.)” (See ECF No. 5 at 13.) The Court 28 1 Petition (“First Amended Petition”), raising one enumerated claim for relief. (ECF No. 3.) 2 On April 1, 2021, the Court dismissed the case for again failing to satisfy the filing fee 3 requirement and for failing to complete the petition form, as she failed to indicate the facts 4 underlying the sole claim listed in the First Amended Petition or the basis for the alleged 5 constitutional violation. (See ECF No. 4.) Petitioner was instructed that to proceed with 6 the instant case, she must submit “a copy of this Order along with: (1) either the $5.00 fee 7 or adequate proof of Petitioner’s inability to pay the fee and (2) a completed Second 8 Amended Petition form that cures the pleading deficiencies outlined above.” (Id. at 4.) On 9 May 20, 2021, Petitioner filed an Amended Petition (“Second Amended Petition”), listing 10 three enumerated claims for relief. (ECF No. 5.) Petitioner has not submitted either the 11 required $5.00 filing fee or a request to proceed in forma pauperis. For the reasons 12 discussed below, the case is again dismissed without prejudice. 13 FAILURE TO SATISFY FILING FEE REQUIREMENT 14 Petitioner has again failed to pay the $5.00 filing fee and has failed to move to 15 proceed in forma pauperis. Because this Court cannot proceed until she has either paid the 16 $5.00 filing fee or qualified to proceed in forma pauperis, this case is subject to dismissal 17 without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. 18 FAILURE TO ALLEGE EXHAUSTION AS TO ALL CLAIMS IN PETITION 19 Habeas petitioners who wish to challenge either their state court conviction or the 20 length of their confinement in state prison must first exhaust state judicial remedies. See 21 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987); see also Picard 22 v. Connor, 404 U.S. 270, 275 (1971) (“[A] state prisoner must normally exhaust available 23 state judicial remedies before a federal court will entertain his petition for habeas corpus.”) 24 “A petitioner has satisfied the exhaustion requirement if: (1) [s]he has ‘fairly presented’ 25 h[er] federal claim to the highest state court with jurisdiction to consider it,” which in this 26 case is the California Supreme Court, “or (2) [s]he demonstrates that no state remedy 27 remains available.” Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted); 28 see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners must give the 1 state courts one full opportunity to resolve any constitutional issues by invoking one 2 complete round of the State’s established appellate review process.”) 3 Additionally, the claims presented in the federal courts must be the same as those 4 exhausted in state court and must also allege, in state court, how one or more of her federal 5 rights have been violated. See Picard, 404 U.S. at 276 (“Only if the state courts have had 6 the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding 7 does it make sense to speak of the exhaustion of state remedies. Accordingly, we have 8 required a state prisoner to present the state courts with the same claim [s]he urges upon 9 the federal courts.”); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (“If state 10 courts are to be given the opportunity to correct alleged violations of prisoners’ federal 11 rights, they must surely be alerted to the fact that the prisoners are asserting claims under 12 the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary 13 ruling at a state court trial denied h[er] the due process of law guaranteed by the Fourteenth 14 Amendment, [s]he must say so, not only in federal court, but in state court.”) 15 In the instant Second Amended Petition, Petitioner raises three grounds for relief and 16 indicates Ground One was raised in the California Supreme Court. (ECF No. 5 at 6.) 17 Petitioner indicates she did not raise Grounds Two or Three in the California Supreme 18 Court. (Id. at 14-15.) Therefore, Petitioner has filed a “mixed” petition, that is, a Petition 19 which presents both exhausted and unexhausted claims. In Rose v. Lundy, 455 U.S. 509 20 (1982), the United States Supreme Court held that a mixed petition is subject to dismissal 21 because it violates the “total exhaustion rule” required in habeas petitions brought pursuant 22 to § 2254, but that a petitioner must be permitted an opportunity to cure that defect prior to 23 dismissal. Id. at 514-20. 24 Because Petitioner indicates the Second Amended Petition contains both 25 unexhausted and exhausted claims, the Court notifies Petitioner of the following options. 26 i) First Option: Demonstrate Exhaustion 27 Petitioner may file further papers with this Court to demonstrate that she has in fact 28 exhausted the claims she has indicated are unexhausted. If Petitioner chooses this option, 1 these papers are due no later than July 14, 2021. Respondent may file a reply by July 28, 2 2021. 3 ii) Second Option: Voluntarily Dismiss the Petition 4 Petitioner may move to voluntarily dismiss her entire federal petition and return to 5 state court to exhaust the unexhausted claims. Petitioner may then file a new federal 6 petition containing only exhausted claims. See Rose, 455 U.S. at 510, 520-21 (stating that 7 a petitioner who files a mixed petition may dismiss her petition to “return[] to state court 8 to exhaust [her] claims”). If Petitioner chooses this second option, she must file a pleading 9 with this Court no later than July 14, 2021. Respondent may file a reply by July 28, 2021. 10 Petitioner is cautioned that any new federal petition must be filed before expiration 11 of the one-year statute of limitations. Ordinarily, a petitioner has one year from when her 12 conviction became final to file her federal petition, unless she can show that statutory or 13 equitable “tolling” applies. Duncan v. Walker, 533 U.S. 167, 176 (2001); 28 U.S.C. 14 § 2244(d).2 The statute of limitations does not run while a properly filed state habeas 15 16 17 2 28 U.S.C. § 2244 (d) provides: 18 (1) A 1-year period of limitation shall apply to an application for a writ of 19 habeas corpus by a person in custody pursuant to the judgment of a State court. 20 The limitation period shall run from the latest of-- 21 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 22 (B) the date on which the impediment to filing an application created by 23 State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 24 (C) the date on which the constitutional right asserted was initially 25 recognized by the Supreme Court, if the right has been newly recognized 26 by the Supreme Court and made retroactively applicable to cases on collateral review; or 27 (D) the date on which the factual predicate of the claim or claims presented 28 1 corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 2 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an 3 application is ‘properly filed’ when its delivery and acceptance [by the appropriate court 4 officer for placement into the record] are in compliance with the applicable laws and rules 5 governing filings.”); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding that a 6 state application for post-conviction relief which is ultimately dismissed as untimely was 7 neither “properly filed” nor “pending” while it was under consideration by the state court, 8 and therefore does not toll the statute of limitations), as amended 439 F.3d 993. However, 9 absent some other basis for tolling, the statute of limitations continues to run while a federal 10 habeas petition is pending. Duncan, 533 U.S. at 181-82. 11 iii) Third Option: Formally Abandon Unexhausted Claims 12 Petitioner may formally abandon her unexhausted claims and proceed with her 13 exhausted one. See Rose, 455 U.S. at 510, 520-21 (stating that a petitioner who files a 14 mixed petition may “resubmit[] the habeas petition to present only exhausted claims”). If 15 Petitioner chooses this third option, she must file a pleading with this Court no later than 16 July 14, 2021. Respondent may file a reply by July 28, 2021. 17 Petitioner is cautioned that once she abandons her unexhausted claims she may lose 18 the ability to ever raise them in federal court. See Slack v. McDaniel, 529 U.S. 473, 488 19 (2000) (stating that a court’s ruling on the merits of claims presented in a first § 2254 20 petition renders any later petition successive); see also 28 U.S.C. § 2244 (a)-(b).3 21 22 23 24 (2) The time during which a properly filed application for State post- 25 conviction or other collateral review with respect to the pertinent judgement or claim is pending shall not be counted toward any period of limitation under 26 this subsection. 27 3 28 U.S.C. § 2244(b)(2) provides that a claim presented in a second or successive habeas 28 1 iv) Fourth Option: File a Motion to Stay the Federal Proceedings 2 Petitioner may file a motion to stay this federal proceeding while she returns to state 3 court to exhaust her unexhausted claim(s). There are two methods available to Petitioner, 4 the “stay and abeyance” procedure and the “withdrawal and abeyance” procedure. 5 If Petitioner wishes to use the “stay and abeyance” procedure she should ask the 6 Court to stay her mixed petition while she returns to state court to exhaust. Under this 7 procedure she must demonstrate there are arguably meritorious claim(s) which she wishes 8 to return to state court to exhaust, that she is diligently pursuing her state court remedies 9 with respect to those claim(s), and that good cause exists for her failure to timely exhaust 10 her state court remedies. Rhines v. Weber, 544 U.S. 269, 277-78 (2005). 11 If Petitioner wishes to use the “withdrawal and abeyance” procedure, she must 12 voluntarily withdraw her unexhausted claim(s), ask the Court to stay the proceedings and 13 hold the fully-exhausted petition in abeyance while she returns to state court to exhaust, 14 and then seek permission to amend her petition to include the newly exhausted claim(s) 15 after exhaustion is complete. King v. Ryan, 564 F.3d. 1133, 1135 (9th Cir. 2009). Although 16 under this procedure Petitioner is not required to demonstrate good cause for her failure to 17 timely exhaust, the newly exhausted claim(s) must be either timely under the statute of 18 limitations or “relate back” to the claim(s) in the fully-exhausted petition, that is, they must 19 20 21 22 (A) the applicant shows that the claim relies on a new rule of constitutional 23 law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or 24 (B) (i) the factual predicate for the claim could not have been discovered 25 previously through the exercise of due diligence; and 26 (ii) the facts underlying the claim, if proven and viewed in light of the 27 evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have 28 1 ||share a “common core of operative facts” with the previously exhausted claim(s). King, 2 ||564 F.3d at 1141, quoting Mayle v. Felix, 545 U.S. 644. 659 (2005). 3 If Petitioner chooses this fourth option, she must file a pleading with this Court no 4 than July 14, 2021. Respondent may file a reply by July 28, 2021. 5 CONCLUSION AND ORDER 6 The case is DISMISSED without prejudice for failure to satisfy the filing fee 7 ||requirement. If Petitioner wishes to proceed with this case, she must, no later than July 8 || 14, 2021: (1) pay the $5.00 fee OR submit adequate proof of her inability to pay the fee 9 || AND (2) choose one of the options outlined above. Petitioner is cautioned that if she fails 10 |/to respond to this Order, the Second Amended Petition will remain dismissed without 11 prejudice. See Rose, 455 U.S. at 522. 12 The Clerk of Court is directed to send Petitioner a blank Southern District of 13 || California In Forma Pauperis application along with a copy of this Order. 14 || IT ISSO ORDERED. 15 Dated: May 27, 2021 € Z 16 Hon. Cathy Ann Bencivengo 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28