1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTONIO MURO, Case No.: 22cv0550 LL (JLB) 12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE AND NOTICE OF OPTIONS DUE TO 14 CONNIE GIPSON, et al., FAILURE TO EXHAUST STATE 15 Respondents. COURT REMEDIES 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas 18 Corpus pursuant to 28 U.S.C. § 2254, challenging a 2019 San Diego County Superior Court 19 conviction in case number SCE383359, for which Petitioner was sentenced to 26 years to 20 life. (ECF No. 1.) For the reasons discussed below, the Court DISMISSES the habeas 21 action without prejudice. 22 FAILURE TO SATISFY FILING FEE REQUIREMENT 23 Petitioner has not paid the $5.00 filing fee and has not filed an application to proceed 24 in forma pauperis. Because this Court cannot proceed until Petitioner has either paid the 25 filing fee or qualified to proceed in forma pauperis, the Petition is subject to dismissal 26 without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. 27 /// 28 /// 1 FAILURE TO ALLEGE EXHAUSTION AS TO ALL CLAIMS IN PETITION 2 Habeas petitioners who wish to challenge either their state court conviction or the 3 length of their confinement in state prison must first exhaust state judicial remedies. See 4 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987); see also Picard 5 v. Connor, 404 U.S. 270, 275 (1971) (“[A] state prisoner must normally exhaust available 6 state judicial remedies before a federal court will entertain his petition for habeas corpus.”) 7 “A petitioner has satisfied the exhaustion requirement if: (1) he has ‘fairly presented’ his 8 federal claim to the highest state court with jurisdiction to consider it,” which in this case 9 is the California Supreme Court, “or (2) [s]he demonstrates that no state remedy remains 10 available.” Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted); see 11 also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners must give the 12 state courts one full opportunity to resolve any constitutional issues by invoking one 13 complete round of the State’s established appellate review process.”) 14 Additionally, the claims presented in the federal courts must be the same as those 15 exhausted in state court and must also allege, in state court, how one or more of his federal 16 rights have been violated. See Picard, 404 U.S. at 276 (“Only if the state courts have had 17 the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding 18 does it make sense to speak of the exhaustion of state remedies. Accordingly, we have 19 required a state prisoner to present the state courts with the same claim he urges upon the 20 federal courts.”); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (“If state courts 21 are to be given the opportunity to correct alleged violations of prisoners’ federal rights, 22 they must surely be alerted to the fact that the prisoners are asserting claims under the 23 United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling 24 at a state court trial denied him the due process of law guaranteed by the Fourteenth 25 Amendment, he must say so, not only in federal court, but in state court.”) 26 In the instant Petition, Petitioner indicates Ground One was raised in the petition for 27 review filed in the California Supreme Court, which was denied by the state supreme court 28 on December 30, 2020 (see ECF No. 1 at 2, 6), while Ground Two has been raised in a 1 habeas petition filed on March 21, 2022, which currently remains pending before the 2 California Supreme Court. (See id. at 4, 7, 10.) 3 It appears Petitioner has filed a “mixed” petition, that is, a petition which presents 4 both exhausted and unexhausted claims. In Rose v. Lundy, 455 U.S. 509 (1982), the United 5 States Supreme Court held that a mixed petition is subject to dismissal because it violates 6 the “total exhaustion rule” required in habeas petitions brought pursuant to § 2254, but that 7 a petitioner must be permitted an opportunity to cure that defect prior to dismissal. Id. at 8 514-20. Having preliminarily determined the Petition contains both an exhausted and an 9 unexhausted claim, the Court notifies Petitioner of his options. 10 i) First Option: Demonstrate Exhaustion 11 Petitioner may file further papers with this Court to demonstrate that he has in fact 12 exhausted all of the claims in the Petition. If Petitioner chooses this option, these papers 13 are due no later than June 21, 2022. Respondent may file a reply by July 21, 2022. 14 ii) Second Option: Voluntarily Dismiss the Petition 15 Petitioner may move to voluntarily dismiss his entire federal petition and return to 16 state court to exhaust the unexhausted claim. Petitioner may then file a new federal petition 17 containing only exhausted claims. See Rose, 455 U.S. at 510, 520-21 (stating that a 18 petitioner who files a mixed petition may dismiss his petition to “return[] to state court to 19 exhaust his claims”). If Petitioner chooses this second option, he must file a pleading with 20 this Court no later than June 21, 2022. Respondent may file a reply by July 21, 2022. 21 Petitioner is cautioned that any new federal petition must be filed before expiration 22 of the one-year statute of limitations. Ordinarily, a petitioner has one year from when his 23 conviction became final to file his federal petition, unless he can show that statutory or 24 equitable “tolling” applies. Duncan v. Walker, 533 U.S. 167, 176 (2001); 28 U.S.C. 25 § 2244(d).1 The statute of limitations does not run while a properly filed state habeas 26 27 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 /// 12 /// 13 14 15 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 16 The limitation period shall run from the latest of-- 17 (A) the date on which the judgment became final by the conclusion of direct 18 review or the expiration of the time for seeking such review; 19 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is 20 removed, if the applicant was prevented from filing by such State action; 21 (C) the date on which the constitutional right asserted was initially 22 recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on 23 collateral review; or 24 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 25 (2) The time during which a properly filed application for State post- 26 conviction or other collateral review with respect to the pertinent judgement 27 or claim is pending shall not be counted toward any period of limitation under this subsection. 28 1 iii) Third Option: Formally Abandon Unexhausted Claim 2 Petitioner may formally abandon his unexhausted claim and proceed with his 3 exhausted one. See Rose, 455 U.S. at 510, 520-21 (stating that a petitioner who files a 4 mixed petition may “resubmit[] the habeas petition to present only exhausted claims.”) If 5 Petitioner chooses this third option, he must file a pleading with this Court no later than 6 June 21, 2022. Respondent may file a reply by July 21, 2022. 7 Petitioner is cautioned that once he abandons his unexhausted claim he may lose the 8 ability to ever raise it in federal court. See Slack v. McDaniel, 529 U.S. 473, 488 (2000) 9 (stating that a court’s ruling on the merits of claims presented in a first § 2254 petition 10 renders any later petition successive); see also 28 U.S.C. § 2244 (a)-(b).2 11 iv) Fourth Option: File a Motion to Stay the Federal Proceedings 12 Petitioner may file a motion to stay this federal proceeding while he returns to state 13 court to exhaust his unexhausted claim. There are two methods available to Petitioner, the 14 “stay and abeyance” procedure and the “withdrawal and abeyance” procedure. 15 If Petitioner wishes to use the “stay and abeyance” procedure he should ask the Court 16 to stay his mixed petition while he returns to state court to exhaust. Under this procedure 17 he must demonstrate there are arguably meritorious claim(s) which he wishes to return to 18 state court to exhaust, that he is diligently pursuing his state court remedies with respect to 19 20 21 2 28 U.S.C. § 2244(b)(2) provides that a claim presented in a second or successive habeas corpus application under § 2254 shall be dismissed unless: 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 ||those claim(s), and that good cause exists for his failure to timely exhaust his state court 2 ||remedies. Rhines v. Weber, 544 U.S. 269, 277-78 (2005). 3 If Petitioner wishes to use the “withdrawal and abeyance” procedure, he must 4 || voluntarily withdraw his unexhausted claim(s), ask the Court to stay the proceedings and 5 || hold the fully-exhausted petition in abeyance while he returns to state court to exhaust, and 6 seek permission to amend his petition to include the newly exhausted claim(s) after 7 exhaustion is complete. King v. Ryan, 564 F.3d. 1133, 1135 (9th Cir. 2009). Although 8 || under this procedure Petitioner is not required to demonstrate good cause for his failure to 9 timely exhaust, the newly exhausted claim(s) must be either timely under the statute of 10 || limitations or “relate back” to the claim(s) in the fully-exhausted petition, that is, they must 11 ||share a “common core of operative facts” with the previously exhausted claim(s). King, 12 F.3d at 1141, quoting Mayle v. Felix, 545 U.S. 644, 659 (2005). 13 If Petitioner chooses this fourth option, he must file a pleading with this Court no 14 || later than June 21, 2022. Respondent may file a reply by July 21, 2022. 15 CONCLUSION AND ORDER 16 For the foregoing reasons, the Court DISMISSES the Petition without prejudice. If 17 || Petitioner wishes to proceed with this habeas action, he must, no later than June 21, 2022: 18 |/(1) pay the $5.00 filing fee OR submit adequate proof of his inability to pay the fee; AND 19 ||(2) choose one of the options outlined above. Petitioner is cautioned that if he fails to 20 || respond to this Order, the Petition will remain dismissed without prejudice. See Rose, 455 21 at 522. The Clerk of Court shall send a blank Southern District of California In Forma 22 || Pauperis Application to Petitioner along with a copy of this Order. 23 IT IS SO ORDERED. 24 Dated: April 25, 2022 NO 25 QF | 26 Honorable Linda Lopez 57 United States District Judge 28