1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RONALD BRYSON, Case No.: 22cv556-BAS(LR) 12 Petitioner, NOTICE REGARDING POSSIBLE 13 v. DISMISSAL OF PETITION FOR FAILURE TO EXHAUST STATE 14 RAYMOND MADDEN, et al., COURT REMEDIES 15 Respondents. 16 17 I. INTRODUCTION 18 On April 20, 2022, Petitioner, a state prisoner proceeding pro se, filed a petition for 19 writ of habeas corpus under 28 U.S.C. § 2254 together with a Motion for Stay, a Motion 20 for Evidentiary Hearing, and a Motion for Discovery. (ECF Nos. 1–4.) The Court 21 dismissed this case without prejudice on May 12, 2022, because Petitioner had failed to 22 either pay the $5.00 filing fee or move to proceed In Forma Pauperis (“IFP”). Petitioner 23 was given until July 18, 2022, to pay the fee or file an IFP motion together with adequate 24 proof of his inability to pay the fee. (ECF No. 5.) 25 On July 11, 2022, Petitioner filed an IFP motion, but did not provide the Court with 26 adequate proof of his inability to pay the fee by including a Prison Trust Account Statement 27 or Prison Certificate showing the amount of money he has in his Prison Trust Account. 28 (ECF No. 6.) Accordingly, on July 28, 2022, the Court denied Petitioner’s IFP motion 1 without prejudice and gave Petitioner until October 1, 2022, to provide the Court with the 2 required documents showing he could not afford the filing fee. (ECF No. 7.) The Court 3 also denied his Motion for Stay, Motion for Evidentiary Hearing, and Motion for Discovery 4 without prejudice. (Id.) 5 On September 28, 2022, Petitioner filed a series of documents which the Court 6 entitled “Exhibits in Support of Petition,” and “Exhibits as to Payment of Filing Fees.” 7 (ECF Nos. 8–9.) On November 2, 2022, Petitioner filed a Prison Certificate and a Prison 8 Trust Account Statement showing he had $0.15 on account at the institution at which is 9 confined. (ECF No. 11.) Then, on November 23, 2022, Petitioner paid the $5.00 filing 10 fee. (ECF No. 12.) 11 II. THE PETITION CONTAINS BOTH EXHAUSTED AND UNEXHAUSTED 12 CLAIMS 13 The Petition contains both unexhausted and exhausted claims and is therefore 14 subject to dismissal. The exhaustion requirement is satisfied by providing the state courts 15 with a “fair opportunity” to rule on Petitioner’s constitutional claims. Anderson v. Harless, 16 459 U.S. 4, 6 (1982). In most instances, a claim is exhausted once it is presented to a state’s 17 highest court, either on direct appeal or through state collateral proceedings. See Sandgathe 18 v. Maass, 314 F.3d 371, 376 (9th Cir. 2002). The constitutional claim raised in the federal 19 proceedings must be the same as that raised in the state proceedings. See id. Although 20 Petitioner states he has exhausted ground one, he has not alleged exhaustion as to grounds 21 two, three, and four. (Pet., ECF No. 1 at 6-9.) He also states he is currently exhausting the 22 following claims: “ineffective assistance of counsel, judicial misconduct, prosecutorial 23 misconduct, Miranda violation, illegal search and seizure, self-representation denied, 24 defendant forced to take attorney, no search warrant for arrest nor DNA swab . . . the 25 alleged victim confessed to the sex act, inconsistent statements.” (Id. at 10.) Thus, to avoid 26 the Court dismissing the petition on its own accord, Petitioner must choose one of the 27 following options. 28 / / / 1 A. First Option: Demonstrate Exhaustion 2 Petitioner may file further papers with this Court to demonstrate that he has in fact 3 exhausted the claims the Court has determined are likely unexhausted. If Petitioner chooses 4 this option, his papers are due no later than February 2, 2023. Respondent may file a reply 5 by March 2, 2023. 6 B. Second Option: Voluntarily Dismiss the Petition 7 Petitioner may move to voluntarily dismiss his entire federal petition and return to 8 state court to exhaust his unexhausted claims. Petitioner may then file a new federal 9 petition containing only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 520–21 10 (stating that a petitioner who files a mixed petition may dismiss his petition to “return[] to 11 state court to exhaust his claims”). If Petitioner chooses this second option, he must file a 12 pleading with this Court no later than February 2, 2023. 13 Petitioner is cautioned that any new federal petition must be filed before expiration 14 of the one-year statute of limitations. Ordinarily, a petitioner has one year from when his 15 conviction became final to file his federal petition, unless he can show that statutory or 16 equitable “tolling” applies. Duncan v. Walker, 533 U.S. 167, 176 (2001); 28 U.S.C. 17 § 2244(d). The statute of limitations does not run while a properly filed state habeas corpus 18 petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 19 Cir. 1999); but see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is 20 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 21 placement into the record] are in compliance with the applicable laws and rules governing 22 filings.”); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding that a state 23 application for post-conviction relief which is ultimately dismissed as untimely was neither 24 “properly filed” nor “pending” while it was under consideration by the state court, and 25 therefore does not toll the statute of limitations), as amended 439 F.3d 993. However, 26 absent some other basis for tolling, the statute of limitations continues to run while a federal 27 habeas petition is pending. Duncan, 533 U.S. at 181–82. 28 / / / 1 C. Third Option: Formally Abandon Unexhausted Claims 2 Petitioner may formally abandon his unexhausted claims and proceed with his 3 exhausted ones. 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 February 2, 2023. 7 Petitioner is cautioned that once he abandons his unexhausted claims, he may lose 8 the ability to ever raise them in federal court. See Slack v. McDaniel, 529 U.S. 473, 488 9 (2000) (stating that a court’s ruling on the merits of claims presented in a first § 2254 10 petition renders any later petition successive); see also 28 U.S.C. § 2244 (a)-(b). 11 D. Fourth Option: Request a Stay of 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 claims. There are two methods available to Petitioner, 14 the “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 claims which he wishes to return to 18 state court to exhaust, that he is diligently pursuing his state court remedies with respect to 19 those claims, and that good cause exists for his failure to timely exhaust his state court 20 remedies. Rhines v. Webber, 544 U.S. 269, 277–78 (2005). 21 If Petitioner wishes to use the “withdrawal and abeyance” procedure, he must 22 voluntarily withdraw his unexhausted claims, ask the Court to stay the proceedings and 23 hold the fully-exhausted petition in abeyance while he returns to state court to exhaust, and 24 then seek permission to amend his petition to include the newly exhausted claims after 25 exhaustion is complete. King v. Ryan, 564 F.3d 1133, 1141–42 (9th Cir. 2009). Although 26 under this procedure Petitioner is not required to demonstrate good cause for his failure to 27 timely exhaust, the newly exhausted claims must be either timely under the statute of 28 limitations or “relate back” to the claims in the fully-exhausted petition, that is, they must 1 ||share a “common core of operative facts” with the previously exhausted claims. Id. at 2 || 1142-43 (quoting Mayle v. Felix, 545 U.S. 644, 659 (2005)). 3 If Petitioner chooses this fourth option, he must file a Motion for Stay no later than 4 February 2, 2023. Respondent may file a reply by March 2, 2023. 5 Ht. CONCLUSION 6 The Court hereby notifies Petitioner that he has filed a Petition that contains both 7 exhausted and unexhausted claims and it is therefore subject to dismissal. If Petitioner fails 8 respond to this Order, the Court will recommend to the District Judge assigned to this 9 || case that the Petition be dismissed without prejudice. See Rose, 455 U.S. at 522. 10 IT IS SO ORDERED. 11 ||Dated: December 13, 2022 12 13 / L 14 Honorable Lupe Rodriguez, Jr. 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28