1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 RICHARD R. SINGH, Case No. 18-cv-07622-YGR (PR)

5 Petitioner, ORDER GRANTING PETITIONER’S MOTION TO AMEND PETITION; 6 v. DENYING RESPONDENT’S MOTION TO DISMISS AS MOOT; DIRECTIONS 7 J. ROBERTSON, Warden, TO CLERK

Respondent. 8

9 I. INTRODUCTION 10 Petitioner, a state prisoner, has filed a pro se petition for a writ of habeas corpus pursuant 11 to

, challenging his state conviction and raising eleven claims. Respondent has 12 filed a motion to dismiss five of Petitioner’s eleven claims as unexhausted. Dkt. 9. In response, 13 Petitioner has filed a motion to amend his petition and delete the five unexhausted claims. Dkt. 14 16. Petitioner has also filed his amended petition containing the remaining exhausted claims. 15 Dkt. 19. 16 II. BACKGROUND 17 A jury found Petitioner guilty of two counts of first degree murder with special 18 circumstances of lying in wait and multiple murder, and it also found true multiple personal use of 19 a firearm enhancement allegations as to both counts. Resp’t Ex. 1 at 1. The trial court sentenced 20 Petitioner to life without the possibility of parole consecutive to 50 years to life.

21 Petitioner appealed and filed a state habeas petition in the state appellate court. Resp’t 22 Exs. 1 & 2. On October 2, 2017, the state appellate court denied the habeas petition. Resp’t Ex. 3. 23 The state appellate court decided the direct appeal on the same day in an unpublished decision 24 upholding the murder convictions and special circumstance enhancements, and reversing and 25 remanding the matter to the trial court for resentencing to strike firearm enhancements under 26 California Penal Code § 12022.53(d) and (e) and impose the previously stayed firearm 27 enhancements under California Penal Code § 12022.53(c). Resp’t Ex. 1. 1 On October 31, 2017, the state appellate court issued an order modifying its opinion with 2 no change in the judgment and denying rehearing. Resp’t Ex. 4. 3 Petitioner filed petitions for review of the appeal and the denial of the habeas petition in 4 the California Supreme Court. Resp’t Exs. 5 & 6. On January 17, 2018, the state supreme court 5 denied review of the denial of the habeas petition. Resp’t Ex. 7. On the same day, the state 6 supreme court granted review and remanded to the state appellate court with directions to vacate 7 its decision and further consider the cause in light of California Senate Bill 620. Resp’t Ex. 8. 8 On February 26, 2018, the state appellate court again affirmed the convictions and special 9 circumstance enhancements but reversed and remanded for to the trial court for resentencing to 10 strike the California Penal Code § 12022.53(d) and (e) enhancements and to consider exercising 11 its discretion to strike the previously stayed California Penal Code § 12022.53(c) enhancements.1 12 Resp’t Ex. 9. 13 On June 19, 2018, the trial court struck the California Penal Code § 12022.53(d) and 14 (e) enhancements, imposed the previously stayed California Penal Code § 12022.53(c) 15 enhancements and resentenced Petitioner to life without parole consecutive to 40 years. Resp’t 16 Ex. 10. 17 On December 19, 2018, Petitioner filed a timely petition in this Court alleging eleven 18 claims. Dkt. 1. 19 On February 26, 2019, this Court issued an order to show cause. Dkt. 6. 20 III. DISCUSSION 21 A. Pending Motions 22 Respondent has filed a motion to dismiss the petition on the grounds that Petitioner has 23 failed to exhaust state remedies with respect to five of his eleven claims. Dkt. 9. In response, 24 Petitioner has filed a motion seeking leave to file an amended petition that omits the five 25 unexhausted claims. Dkt. 16. Petitioner has also filed his amended petition, which includes the 26 remaining exhausted claims. Dkt. 19. 27 1 Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings 2 either the fact or length of their confinement are first required to exhaust state judicial remedies, 3 either on direct appeal or through collateral proceedings, by presenting the highest state court 4 available with a fair opportunity to rule on the merits of each and every claim they seek to raise in 5 federal court. See

(b)-(c). Before a petitioner may challenge either the fact or 6 length of his confinement in a habeas petition in this Court, he must present to the California 7 Supreme Court any claims he wishes to raise in this court. See Rose v. Lundy,

, 522 8 (1982) (holding every claim raised in federal habeas petition must be exhausted). If available state 9 remedies have not been exhausted as to all claims, the district court must dismiss the petition. See 10

; Guizar v. Estelle,

(9th Cir. 1988). 11 Here, both Petitioner and Respondent agree that five of the eleven claims were not 12 presented to the state supreme court in either the state post-conviction or collateral proceedings. 13 See Dkts. 9, 16. The Court’s review of the state court pleadings confirm that these five claims are 14 not exhausted. See Resp’t Exs. 5 at 9-10, 26-58 & 6 at 8-9, 25-52. Accordingly, the Court 15 GRANTS Petitioner’s motion for leave to delete his five unexhausted claims (dkt. 16). See Rose, 16

(petitioner can always amend the petition to delete the unexhausted claims rather 17 than returning to state court to exhaust all claims). The five unexhausted claims are DISMISSED 18 without prejudice for failure to exhaust,2 and the amended petition, located at Docket No. 19, is 19 the operative pleading. Respondent’s motion to dismiss is DENIED as moot. Dkt. 9. 20 B. Order to Show Cause 21 This court may entertain a petition for a writ of habeas corpus “in behalf of a person in 22 custody pursuant to the judgment of a State court only on the ground that he is in custody in 23 violation of the Constitution or laws or treaties of the United States.”

(a). It 24 shall “award the writ or issue an order directing the respondent to show cause why the writ should 25

26 2 The Court cautions Petitioner that in deleting his unexhausted claims, he may face dismissal of any later-filed petition. See

(b); see also Burton v. Stewart,

(2007) (petitioner who elects to delete unexhausted claims and proceed to adjudication of 1 not be granted, unless it appears from the application that the applicant or person detained is not 2 entitled thereto.”

§ 2243. 3 It does not appear from the face of the amended petition that it is without merit. Liberally 4 construed, these claims are cognizable under § 2254 and merit an answer from Respondent. 5 IV. CONCLUSION 6 For the foregoing reasons, the Court orders as follows: 7 1. Petitioner’s motion to amend the petition to delete the unexhausted claims is 8 GRANTED. Dkt. 16. The five unexhausted claims are DISMISSED, and the amended petition, 9 located at Docket No. 19, is the operative pleading. The Clerk of the Court is directed to file the 10 document most recently filed by Plaintiff, which is labeled “Petition for a Writ of Habeas Corpus,” 11 and docket the aforementioned document as Petitioner’s “Amended Petition.” Dkt. 19. The Clerk 12 is further directed to mark the amended petition as filed on October 18, 2019, the date it was 13 received by the Court. 14 2. Respondent’s Motion to Dismiss for Failure to Exhaust State Remedies is DENIED 15 as moot. Dkt. 9. 16 3. Respondent shall file with this Court and serve upon Petitioner, within sixty (60) 17 days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules 18 Governing § 2254 Cases, showing cause why a writ of habeas corpus should not be issued. 19 Respondent shall file with the Answer a copy of all portions of the relevant state records that have 20 been transcribed previously and that are relevant to a determination of the issues presented by the 21 amended petition. 22 4. If Petitioner wishes to respond to the Answer, he shall do so by filing a Traverse 23 with the Court and serving it on Respondent within sixty (60) days of his receipt of the Answer. 24 Should Petitioner fail to do so, the amended petition will be deemed submitted and ready for 25 decision sixty (60) days after the date Petitioner is served with Respondent’s Answer. 26 5. Respondent may file with this Court and serve upon Petitioner, within sixty (60) 27 days of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an 1 Cases. If Respondent files such a motion, Petitioner shall file with the Court and serve on 2 || Respondent an opposition or statement of non-opposition to the motion within sixty (60) days of 3 || receipt of the motion, and Respondent shall file with the Court and serve on Petitioner a reply 4 || within fourteen (14) days of receipt of any opposition. 5 6. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep the 6 || Court and Respondent informed of any change of address and must comply with the Court’s 7 orders in a timely fashion. Pursuant to Northern District Local Rule 3-11 a party proceeding pro 8 || se whose address changes while an action is pending must promptly file a notice of change of 9 address specifying the new address. See L.R. 3-11(a). The Court may dismiss a pro se action 10 || without prejudice when: (1) mail directed to the pro se party by the Court has been returned to the 11 Court as not deliverable, and (2) the Court fails to receive within sixty days of this return a written 12 || communication from the pro se party indicating a current address. See L.R. 3-11(b); see also 13 Martinez v. Johnson,

(Sth Cir. 1997) (Rule 41(b) applicable in habeas cases). 14 || Petitioner must also serve on Respondent’s counsel all communications with the Court by mailing 3 15 a true copy of the document to Respondent’s counsel. 16 7. Upon a showing of good cause, requests for a reasonable extension of time will be 2 17 granted provided they are filed on or before the deadline they seek to extend. 18 8. This Order terminates Docket Nos. 9 and 16. 19 IT IS SO ORDERED. 20 Dated: November 20, 2019 21 22 Loppent Hagteffbecee ONNE GONZALEZ ROGERS 23 United States District Judge 24 25 26 27 28