Opinion
3:21-cv-01386-CAB-AGS
08-04-2021
RAMON HURTADO, Petitioner, v. RAYMOND MADDEN, Warden, Respondent.
ORDER:
(1) CONSTRUING PETITION AS ONE FILED PURSUANT TO 28 U.S.C. § 2254; AND
(2) NOTICE REGARDING POSSIBLE DISMISSAL OF PETITION FOR FAILURE TO EXHAUST STATE COURT REMEDIES
Hon. Cathy Ann Bencivengo, United States District Judge
Petitioner, a state prisoner proceeding pro se, has paid the $5.00 filing fee and has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1.)
BASIS FOR THE PETITION
Although Petitioner filed this action pursuant to § 2241, he is a state prisoner attacking the validity of a state court conviction and sentence imposed by the state of California. Therefore, Petitioner may not proceed under § 2241, but may only proceed with a habeas action in federal court under 28 U.S.C. § 2254. White v. Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 2004) (holding that section 2254 is the proper jurisdictional basis for a habeas petition brought by an individual “in custody pursuant to a state court judgment”). 28 U.S.C. § 2254 is properly understood as “in effect implement[ing] the general grant of habeas corpus authority found in § 2241 as long as the person is in custody pursuant to the judgment of a state court, and not in state custody for some other reason, such as pre-conviction custody, custody awaiting extradition, or other forms of custody that are possible without a conviction.” [citations omitted.] Id. at 1006 (quoting Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000) (emphasis in original). Accordingly, the Court CONSTRUES the Petition as one filed pursuant to 28 U.S.C. § 2254.
FAILURE TO ALLEGE EXHAUSTION AS TO ALL CLAIMS IN THE PETITION
The exhaustion requirement is satisfied by providing the state courts with a “fair opportunity” to rule on Petitioner's constitutional claims. Anderson v. Harless, 459 U.S. 4, 6 (1982). In most instances, a claim is exhausted once it is presented to a state's highest court, either on direct appeal or through state collateral proceedings. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002). The constitutional claim raised in the federal proceedings must be the same as that raised in the state proceedings. See id.
Petitioner has not alleged exhaustion as to claims two and three. (See Pet., ECF No 1 at 19-20.) Having preliminarily determined the petition contains unexhausted claims, the Court notifies Petitioner of the possible dismissal of his petition.
As currently pleaded, claims two and three of the Petition do not state a federal constitutional claim. To present a cognizable federal habeas corpus claim under § 2254, a petitioner must allege both that he is in custody pursuant to a “judgment of a State court, ” and that he is in custody in “violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). Further, a Petitioner cannot simply amend his Petition to state a federal habeas claim and then refile the amended petition. He must first exhaust any federal claim. Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Additionally, the Court cautions Petitioner that under the Antiterrorism and Effective Death Penalty Act of 1996, there is a one-year statute of limitation for a 28 U.S.C. § 2254 writ of habeas corpus. The limitation period runs from the latest of:
(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;
(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 removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1)(A)-(D) (West Supp. 2020).The statute of limitations does not run while a properly filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999); Artuz v. Bennett, 531 U.S. 4, 8 (2000) (“an application is ‘properly filed' when its delivery and acceptance [by the appropriate court officer for placement into the record] are in compliance with the applicable laws and rules governing filings.”). Absent some other basis for tolling, the statute of limitations does run while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
PETITIONER'S OPTIONS
To avoid the Court dismissing the petition on its own accord, Petitioner may choose one of the following options.
1) First Option: Demonstrate Exhaustion
Petitioner may file further papers with this Court to demonstrate that he has in fact exhausted the claim(s) the Court has determined are likely unexhausted. If Petitioner chooses this option, his papers are due no later than September 27, 2021. Respondent may file a reply by October 27, 2021.
2) Second Option: Voluntarily Dismiss the Petition
Petitioner may move to voluntarily dismiss his entire federal petition and return to state court to exhaust his unexhausted claims. Petitioner may then file a new federal petition containing only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 520-21 (stating that a petitioner who files a mixed petition may dismiss his petition to “return[] to state court to exhaust his claims”). If Petitioner chooses this second option, he must file a pleading with this Court no later than September 27, 2021. Respondent may file a reply by October 27, 2021.
Petitioner is cautioned that any new federal petition must be filed before expiration of the one-year statute of limitations. Ordinarily, a petitioner has one year from when his conviction became final to file his federal petition, unless he can show that statutory or equitable “tolling” applies. Duncan v. Walker, 533 U.S. 167, 176 (2001); 28 U.S.C. § 2244(d). The statute of limitations does not run while a properly filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an application is ‘properly filed' when its delivery and acceptance [by the appropriate court officer for placement into the record] are in compliance with the applicable laws and rules governing filings.”); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding that a state application for post-conviction relief which is ultimately dismissed as untimely was neither “properly filed” nor “pending” while it was under consideration by the state court, and therefore does not toll the statute of limitations), as amended 439 F.3d 993. However, absent some other basis for tolling, the statute of limitations continues to run while a federal habeas petition is pending. Duncan, 533 U.S. at 181-82.
3) Third Option: Formally Abandon Unexhausted Claims
Petitioner may formally abandon his unexhausted claims and proceed with his exhausted one. See Rose, 455 U.S. at 510, 520-21 (stating that a petitioner who files a mixed petition may “resubmit[] the habeas petition to present only exhausted claims”). If Petitioner chooses this third option, he must file a pleading with this Court no later than September 27, 2021. Respondent may file a reply by October 27, 2021.
Petitioner is cautioned that once he abandons his unexhausted claim(s), he may lose the ability to ever raise it/them in federal court. See Slack v. McDaniel, 529 U.S. 473, 488 (2000) (stating that a court's ruling on the merits of claims presented in a first § 2254 petition renders any later petition successive); see also 28 U.S.C. § 2244 (a)-(b).
4) Fourth Option: File a Motion to Stay the Federal Proceedings
Petitioner may file a motion to stay this federal proceeding while he returns to state court to exhaust his unexhausted claims. There are two methods available to Petitioner, the “stay and abeyance” procedure and the “withdrawal and abeyance” procedure.
If Petitioner wishes to use the “stay and abeyance” procedure he should ask the Court to stay his mixed petition while he returns to state court to exhaust. Under this procedure he must demonstrate there are arguably meritorious claims which he wishes to return to state court to exhaust, that he is diligently pursuing his state court remedies with respect to those claims, and that good cause exists for his failure to timely exhaust his state court remedies. Rhines v. Webber, 544 U.S. 269, 277-78 (2005).
If Petitioner wishes to use the “withdrawal and abeyance” procedure, he must voluntarily withdraw his unexhausted claims, ask the Court to stay the proceedings and hold the fully-exhausted petition in abeyance while he returns to state court to exhaust, and then seek permission to amend his petition to include the newly exhausted claims after exhaustion is complete. King v. Ryan, 564 F.3d 1133, 1141-42 (9th Cir. 2009). Although under this procedure Petitioner is not required to demonstrate good cause for his failure to timely exhaust, the newly exhausted claims must be either timely under the statute of limitations or “relate back” to the claims in the fully-exhausted petition, that is, they must share a “common core of operative facts” with the previously exhausted claims. Id. at 1142-43, quoting Mayle v. Felix, 545 U.S. 644. 659 (2005).
If Petitioner chooses this fourth option, he must file a pleading with this Court no later than September 27, 2021. Respondent may file a reply by October 27, 2021.
CONCLUSION
For the foregoing reasons, the Court CONSTRUES the Petition as one filed pursuant to 28 U.S.C. § 2254. Further, the Court NOTIFIES PETITIONER THAT HE HAS FILED A PETITION THAT CONTAINS BOTH EXHAUSTED AND UNEXHAUSTED CLAIMS AND IT IS THEREFORE SUBJECT TO DISMISSAL.
If Petitioner fails to respond to this Order, the Court will dismiss the Petition without prejudice. See Rose, 455 U.S. at 522.
IT IS SO ORDERED.