(HC) Vela v. Montgomery

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA MANUEL A. VELA, Case No. 1:20-cv-00588-EPG-HC 10 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED 11 v. W.L. MONTGOMERY, 13 Respondent.

15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

17 I.

18 DISCUSSION 19 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a habeas petition and allows a district court to dismiss a petition before the respondent is ordered to file a response, if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.”

23 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state’s alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971).

3 If Petitioner has not sought relief in the California Supreme Court for the claims that he raises in the petition, the Court cannot proceed to the merits of those claims. 28 U.S.C. § 2254(b)(1). Here, Petitioner raises two claims for relief: (1) insufficient evidence to support the jury’s finding of specific intent for aggravated mayhem; and (2) ineffective assistance of counsel.

7 (ECF No. 1 at 5, 7).1 It appears that Petitioner has not presented his ineffective assistance of counsel (“IAC”) claim to the California Supreme Court. (ECF No. 1 at 7–8).

9 The Court must dismiss without prejudice a mixed petition containing both exhausted and unexhausted claims to give a petitioner an opportunity to exhaust the claims if he can do so. See Lundy, 455 U.S. at 522. However, a petitioner may, at his option, withdraw the unexhausted claims and go forward with the exhausted claims. Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000) (“[D]istrict courts must provide habeas litigants with the opportunity to amend their mixed petitions by striking unexhausted claims as an alternative to suffering dismissal.”).2 A petitioner may also move to withdraw the entire petition and return to federal court when he has finally exhausted his state court remedies.3 17 Additionally, a petitioner may also move to stay and hold in abeyance the petition while he exhausts his claims in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005); Kelly v. Small, 315 F.3d 1063, 1070–71 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007). Under Rhines, “stay and abeyance” of a federal habeas petition while the petitioner presents unexhausted claims to the state court is available in limited circumstances, and only when: (1) there is “good cause” for the failure to exhaust; (2) the Page numbers refer to the ECF page numbers stamped at the top of the page.

24 2 The Court notes that if Petitioner chooses to withdraw his unexhausted IAC claim, he may not be able to raise it later in federal court. See Burton v. Stewart, 549 U.S. 147, 154 (2007) (rejecting supposition that petitioner with unexhausted claims “who elects to proceed to adjudication of his exhausted claims may later assert that a subsequent petition is not ‘second or successive’ precisely because his new claims were unexhausted at the time he filed his first petition”).

3 The Court notes that the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1).

27 Although the limitations period tolls while a properly filed request for collateral review is pending in state court, 28 U.S.C. § 2244(d)(2), it does not toll for the time a federal habeas petition is pending in federal court. Duncan v. wOoOe YOOTR TS UETIOTI POC TP Aye Ve VI | unexhausted claims are not “plainly meritless”; and (3) the petitioner did not intentionally | engage in dilatory litigation tactics. 544 U.S. at 277-78.

3 Under Kelly, a three-step procedure is used: (1) the petitioner amends his petition to | delete any unexhausted claims; (2) the court in its discretion stays the amended, fully exhausted | petition, and holds it in abeyance while the petitioner has the opportunity to proceed to state | court to exhaust the deleted claims; and (3) once the claims have been exhausted in state court, | the petitioner may return to federal court and amend his federal petition to include the newly- | exhausted claims. 315 F.3d at 1070-71. However, a petitioner’s use of Kelly’s three-step | procedure is subject to the requirement of Mayle v. Felix, 545 U.S. 644, 664 (2005), that any | newly exhausted claims that a petitioner seeks to add to a pending federal habeas petition must | be timely or relate back, i.e., share a “common core of operative facts,” to claims contained in | the original petition that were exhausted at the time of filing. King v. Ryan, 564 F.3d 1133, 1143 | (9th Cir. 2009).

14 II.

15 ORDER 16 Accordingly, IT IS HEREBY ORDERED that Petitioner SHALL SHOW CAUSE why | the petition should not be dismissed for failure to exhaust state court remedies within THIRTY | (30) days from the date of service of this order.

19 Petitioner is forewarned that failure to follow this order may result in a recommendation | for dismissal of the petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s | failure to prosecute or to comply with a court order may result in a dismissal of the action).

73 IT IS SO ORDERED.

Dated: _ April 28, 2020 [Je hey 5 UNITED STATES MAGISTRATE JUDGE