1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KENNETH DEAN DAWSON, Case No. 19-cv-05494-PJH

8 Petitioner, ORDER DISMISSING PETITION WITH 9 v. LEAVE TO AMEND

10 THE PEOPLE OF CALIFORNIA, Respondent. 11

12 13 Petitioner, a California prisoner, proceeds pro se with a writ of habeas corpus 14 pursuant to

. The amended petition/motion to stay was dismissed with 15 leave to amend. Petitioner has filed a second amended petition. 16 BACKGROUND 17 Petitioner was sentenced to 20 years in prison after he pleaded no contest to three 18 counts of second-degree robbery. People v. Dawson, No. H041904,

, at 19 *1 (Cal. Ct. App. Feb. 26, 2016). The California Court of Appeal affirmed his conviction 20 on February 26, 2016.

Petitioner did not seek review with the California Supreme 21 Court. In 2019 petitioner filed habeas petitions with the Santa Clara County Superior 22 Court, California Court of Appeal and California Supreme Court. Petition (Docket No. 10) 23 at 3-4. The petitions were all denied in 2019. 24 STANDARD OF REVIEW 25 This court may entertain a petition for writ of habeas corpus “in behalf of a person 26 in custody pursuant to the judgment of a State court only on the ground that he is in 27 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 1 heightened pleading requirements. McFarland v. Scott,

(1994). An 2 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 3 pursuant to a judgment of a state court must “specify all the grounds for relief available to 4 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 5 Governing § 2254 Cases,

. “‘[N]otice’ pleading is not sufficient, for the 6 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 7 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine,

(1st Cir. 8 1970)). 9 LEGAL CLAIMS 10 The previous petitions were dismissed with leave to amend for petitioner to 11 address the timeliness of this petition and to set forth his claim or claims. In this second 12 amended petition, petitioner presents many arguments regarding why he was unable to 13 seek review in the California Supreme Court on direct review and why he is entitled to 14 tolling. However, petitioner failed to set forth what claims were later exhausted in state 15 court and what claims he wishes to proceed with in this court. The second amended 16 petition is dismissed with leave to amend. If petitioner files a third amended complaint he 17 must clearly and plainly set forth his claims. He must also show that these claims were 18 presented to the California Supreme Court. This is the final amendment that will be 19 permitted. 20 Petitioner is also informed that if he seeks resentencing similar to his arguments in 21 state court, he is not entitled to relief because the state courts have already denied his 22 requests. To the extent petitioner claims that California law has been violated, any such 23 claim is dismissed because federal habeas relief is not available for state law errors. A 24 “federal court may issue a writ of habeas corpus to a state prisoner ‘only on the ground 25 that he is in custody in violation of the Constitution or laws or treaties of the United 26 States.’” Swarthout v. Cooke,

(2011) (citations omitted). 27 If petitioner seeks a stay, he must present arguments why he is entitled to a stay. 1 stay and abeyance of a mixed federal petition should be available only in the limited 2 circumstance that good cause is shown for a failure to have first exhausted the claims in 3 state court, that the claim or claims at issue potentially have merit and that there has 4 been no indication that petitioner has been intentionally dilatory in pursuing the litigation. 5 Rhines, supra, at 277-78. 6 In the alternative, petitioner may file a motion for a stay pursuant to the three-step 7 procedure outlined in Kelly v. Small,

(9th Cir. 2003) and King v. Ryan, 564

(9th Cir. 2009).1 A petitioner seeking to avail himself of the Kelly three-step 9 procedure is not required to show good cause, as under Rhines, but rather must show 10 that the amendment of any newly exhausted claims back into the petition satisfies both 11 Mayle v. Felix,

(2005), by sharing a “common core of operative facts” 12 and Duncan v. Walker,

(2001), by complying with the statute of limitations. 13 King, 564 F.3d at 1141-43 (finding district court’s dismissal of unexhausted claims was 14 improper because petitioner was not required to show good cause to avail himself of the 15 Kelly three-part procedure but affirming the dismissal as harmless because the 16 unexhausted claims did not relate back to the claims in the original petition that were fully 17 exhausted at the time of filing). However, no statute of limitations protection is imparted 18 by such a stay, nor are exhausted claims adjudicated during the pendency of such a stay. 19 CONCLUSION 20 1. The second amended petition is DISMISSED with leave to amend. A third 21 amended petition must be filed no later than June 12, 2020, and carry the words 22 AMENDED PETITION on the first page. Failure to amend within the designated time will 23 result in the dismissal of the petition. 24 2. Petitioner must keep the court informed of any change of address and must 25 1 “Pursuant to the Kelly procedure, (1) a petitioner amends his petition to delete any 26 unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to 27 exhaust the deleted claims; and (3) the petitioner later amends his petition and re- 1 comply with the court's orders in a timely fashion. Failure to do so may result in the 2 dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 3 Procedure 41(b). See Martinez v. Johnson,

(5th Cir. 1997) (Rule 4 41(b) applicable in habeas cases). 5 IT IS SO ORDERED. 6 Dated: May 12, 2020 7 8 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 9 United States District Judge

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