Opinion
NO. C 01-3547 WHA (PR)
February 25, 2003
RULINGS; ORDER TO ADMINISTRATIVELY CLOSE CASE
This is a habeas case filed pro se by a state prisoner. Respondent has moved to dismiss on grounds the petition is mixed.
DISCUSSION
Federal courts must dismiss a habeas petition which contains one or more unexhausted claims. Rose v. Lundy, 455 U.S. 509, 522 (1982). When a district court discovers an unexhausted claim it is not free to simply ignore that claim; Rose v. Lundy requires dismissal of the entire habeas petition without reaching the merits of any of its claims if the petition combines exhausted and unexhausted claims. Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). The court must afford the petitioner an opportunity to amend the petition to delete the unexhausted claims, however. Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000).
In its order to show cause the Court determined that three of petitioner's issues were cognizable, namely his contentions that: (1) his right to a fair trial was violated because a juror allegedly concealed information about himself in voir dire and made statement during deliberations which contradicted expert testimony; (2) his due process rights were violated by admission of a witness's involuntary statement to police; (3) his due process rights were violated by a twenty-seven month delay in arresting him.
Respondent contends that the third issue, delay in arresting petitioner, is not exhausted because it was not presented in the petition for review addressed to the Supreme Court of California. In his opposition to the motion to dismiss (which he calls a "Motion to Submit Exhibits") petitioner contends that the issue was presented by implication, but in a subsequent filing ("Motion of Abeyance") he concedes that it is not exhausted. In the Motion of Abeyance petitioner asks leave to amend to delete the unexhausted claim and for a stay to allow him time to exhaust it.
The court may not stay a mixed petition, Greenawalt v. Stewart, 105 F.3d 1268, 1274-75 (9th Cir. 1997), which this one presently is; however, it may grant leave to amend to delete the unexhausted claims, then stay the petition pending exhaustion with the intention of allowing an amendment after exhaustion to add the now-exhausted claims. Calderon v. United States Dist. Court (Taylor), 134 F.3d 981, 989 (9th Cir. 1998) (denying mandamus);see also Greenawalt, 105 F.3d at 1274; Fetterly v. Paskett, 997 F.2d 1295, 1301 (9th Cir. 1993), cert. denied, 513 U.S. 914 (1994). That is the procedure petitioner requests here.
Petitioner's request to amend to delete the exhausted claim will be granted. The petition no longer being mixed, respondent's motion to dismiss will be denied. Petitioner's request for a stay to allow him to exhaust will be granted.
If the petition were dismissed, any attempt by petitioner to file a new petition after exhaustion would probably be barred by the statute of limitations. One Ninth Circuit panel has suggested in dicta that not granting a stay "would likely constitute error" if the limitations period has elapsed and any future petition would be untimely. Ford v. Hubbard, 305 F.3d 875, 884-85 (9th Cir. 2002); cf. Kelly v. Small, 3 15 F.3d 1063, 1070 (9th Cir. 2003) (granting a stay is "particularly appropriate" when a future petition would be untimely; even though "Taylor and its progeny formally leave the district court with discretion in this circuit, we join the `growing consensus' in recognizing the clear appropriateness of a stay when valid claims would otherwise be forfeited.") (quoting Nowaczyk v. Warden, N.H. State Prison, 299 F.3d 69, 79 (1st Cir. 2002)).
CONCLUSION
1. Petitioner's motion for leave to file exhibits (doc 9) is in fact his opposition to the motion to dismiss. It also has been superceded by petitioner's later concession that the issue is not exhausted. As a motion, it is DENIED.2. Petitioner's request for leave to amend to delete the unexhausted claim (doc 11-1) is GRANTED. The petition will be treated as no longer containing claim (3), regarding delay in arresting him.
3. Petitioner's request for a stay (doc 11-2) is also GRANTED. Petitioner should immediately take steps to exhaust his claim in state court. Upon completion of exhaustion, if he has not obtained relief in state court he shall inform the court that exhaustion has been completed. This case will be administratively closed while it is stayed. This has no legal effect; it is purely a statistical procedure. When petitioner informs the court that exhaustion has been completed the case will be administratively reopened.
4. Respondent's motion to dismiss (doc 7) is DENIED.
5. The clerk shall close the file.
IT IS SO ORDERED.