Dunsmore v. Jones

; □ 8 UNITED STATES DISTRICT COURT || SOUTHERN DISTRICT OF CALIFORNIA |} DARRYL DUNSMORE, Case No.: 3:21-cv-2025-JO-KSC 12 Petitioner, (1) ORDER DISMISSING PETITION || V. WITHOUT PREJUDICE AND |) ROBERT BURTON, Warden, (2) NOTICE OF OPTIONS DUE TO 15 Respondent.| FAILURE TO EXHAUST STATE 16 COURT REMEDIES AS TO ALL CLAIMS 18 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas || Corpus pursuant to 28 U.S.C. § 2254. In it, he challenges his conviction and sentence ir || San Diego Superior Court case no. SCS215653. ECF No. | at 1. For the reasons discussec || below the Court dismisses the Petition without prejudice and provides Petitioner notice □□ || his options for exhaustion of state judicial remedies.

23 1. BACKGROUND 24 As an initial matter, the Court notes that this is not the first time Petitioner has ||challenged his conviction in San Diego Superior Court case no. SCS215653. Petitioner || challenged his conviction in case no. SCS215653 ina prior 28 U.S.C. § 2254 petition filed 27 his Court in case number 3:13-cv-1193-GPC-PCL on May 17, 2013. See Dunsmore v. || Beard, 3:13-cv-1193-GPC-PCL, ECF No. | at 1. That petition was denied on the merits on || August 10, 2015. See id., ECF No. 115. Petitioner appealed and the United States Court of || Appeals for the Ninth Circuit denied his request for certificate of appealability on February || 16, 2016. See Dunsmore v. Beard, No. 15-56308 (9th Cir. 2016).

4 On July 15, 2020, Petitioner was resentenced in Superior Court case no. SCS ||215653. See Pet., ECF No. 1 at 6. After his resentencing, Petitioner appealed to the ||California Court of Appeal. A review of the California Court of Appeal’s docket reveals 7 appellate court affirmed that judgment on July 23, 2021 and the California Supreme ||Court denied Petitioner’s petition for review on October 5, 2021. See California Courts, ||Court Information website, https://appellatecases.courtinfo.ca.gov/search/case/mainCase ||Screen.cfm?doc_id=2357105&request token=NilwL SEmPkw%2BW1BRS SFNVEtIMF || wOUDxTJCJeXztRICAgCg%3D%3D&start=1&doc_no=$2706 19&dist=0&search=party || &auth=yes (last visited Jan. 31, 2022).

13 Meanwhile, on September 9, 2020, Petitioner filed another petition for writ of ||habeas corpus in this Court, again challenging his conviction in Superior Court case no.

15 SCS215653. Dunsmore v. Gore, 3:20-cv-1773-CAB-AGS, ECF No. 1. At that time, || Petitioner’s state court appeal was still pending. Because state court proceedings were || ongoing at that time, on March 8, 2021, the Court dismissed the petition in 3:20-cv-1773- || CAB-AGS under the abstention doctrine. See Younger v. Harris, 401 U.S. 37, 41 (1971) || (holding federal courts may not interfere with ongoing state criminal proceedings absent || extraordinary circumstances). See Dunsmore v. Gore, 3:20-cv-1773-CAB-AGS, ECF No. 1/40 at 9-10.

22 On December 1, , Petitioner filed the instant petition for writ of habeas corpus ||pursuant to 28 U.S.C. § 2254, challenging his conviction in Superior Court case no.

24 ||SCS215653. ECF No. 1. He has not paid the filing fee or move to proceed in forma || pauperis.

1 Il. DISCUSSION 2 A. The Petition is Not Successive 3 Because Petitioner has been resentenced in San Diego Superior Court case no.

4 ||SCS21653, he is no longer being held in custody pursuant to the same judgment that he ||challenged in 3:13-cv-01193-GPC-PCL and as such, the current petition is not ||impermissibly second or successive. See Magwood v. Patterson, 561 U.S. 320, 341-42 ||(2010); see also Morales v. Sherman, 949 F.3d 474, 475-76 (9th Cir. 2020) (per curiam) (concluding a federal habeas petition “which raised the same two claims” asserted in an |learlier federal habeas petition was not barred as successive when there had been an ||intervening state court judgment); Wentzell v. Neven, 674 F.3d 1124, 1127-28 (9th Cir. ||2012). Moreover, because Petitioner’s appeal is no longer pending before the California ||courts, the Younger abstention no longer applies. See Juidice v. Vail, 420 U.S. 327, 337 ||(1977).

14 B. Failure to Satisfy the Filing Fee Requirement 15 The Petition must be dismissed, however, because Petitioner has failed to pay the ||$5.00 filing fee and has failed to move to proceed in forma pauperis. Because this Court ||cannot proceed until Petitioner has either paid the $5.00 filing fee or qualified to proceed ||in forma pauperis, the Court DISMISSES the case without prejudice. See Rule 3(a), 2& ||U.S.C. foll. § 2254. If Petitioner wishes to proceed with this case, he must submit, no later 20 than March 18, 2022, a copy of this Order with the $5.00 fee or with adequate proof □□ 21 inability to pay the fee. The Clerk of Court shall send a blank Southern District o!

22 || California In Forma Pauperis Application to Petitioner along with a copy of this Order.

23 C. Failure to Allege Exhaustion of State Judicial Remedies as to All Claims 24 In addition, the Petition appears to contain both exhausted and unexhausted claims 25 Habeas petitioners who wish to challenge either their state court conviction or the length || of their confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C. 27 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state judicial!

28 ||remedies, a California state prisoner must present the California Supreme Court with a fait || opportunity to rule on the merits of every issue raised in his or her federal habeas petition.

2 1/28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. Moreover, to properly exhaust || state court remedies a petitioner must allege, in state court, how one or more of his or her || federal rights have been violated. The Supreme Court in Duncan v. Henry, 513 U.S. 364 ||(1995) reasoned: “If state courts are to be given the opportunity to correct alleged violations || of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are || asserting claims under the United States Constitution.” Jd. at 365-66 (emphasis added).

8 || For example, “[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state ||court trial denied him [or her] the due process of law guaranteed _by the Fourteenth || Amendment, he [or she] must say so, not only in federal court, but in state court.” Jd. at ||366 (emphasis added). Where a petition presents a mix of exhausted and unexhausted 12 claims, it is subject to dismissal because it violates the “total exhaustion rule” required of || habeas petitions brought pursuant to § 2254. Rose v. Lundy, 455 U.S. 509, 522 (1982). In || such situations, a petitioner must be permitted to cure that defect prior to dismissal. See id || at 514-20.

16 Petitioner raises four general claims, each including several subclaims, in his 17 Petition: (1) he received ineffective assistance of counsel; (2) his due process rights were || violated when the prosecutor withheld evidence; (3) he has been denied access to courts: || and (4) he is being subjected to “excessive confinement” because he has been improperly || denied pre-sentencing credits. See Pet., ECF No. 1 at 12, 25, 32, 35. Petitioner indicates he ||has presented Claim One to the state supreme court. Jd. at 12. Petitioner, however, has || failed to allege he has exhausted Claims Two, Three and Four by presenting them to the || California Supreme Court. See id. at 25, 32, 35. Petitioner has therefore filed a “mixed” || petition; that is, one which presents both exhausted and unexhausted claims. Having 25 preliminarily determined the Petition contains unexhausted and exhausted claims, the 26 Court notifies Petition of his options.

1 || . I. First Option: Allege Exhaustion 2 Petitioner may file further papers with this Court to demonstrate that he has in fact exhausted the claims the Court has determined are unexhausted. If Petitioner chooses this ||option, his papers are due no later than March 18, 2022. Respondent may file a reply by || April 18, 2022.

6 2. Second Option: Voluntarily Dismiss the Petition 7 Petitioner may voluntarily dismiss his entire federal petition and return to state court ||to exhaust any unexhausted claims. He may thereafter file a new federal petition in this ||Court containing only exhausted claims. See Rose, 455 U.S. at 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 option, he must file a pleading with this || Court no later than March 18, 2022. Respondent may file a reply by April 18, 2022.

13 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 o1 ||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 19 □ ||! 28 U.S.C. § 2244 (d) provides: 21 _(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The 22 limitation period shall run from the latest of — 23 (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 25 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 27 recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral 28 review; or || petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th 2 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 A || 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. .

11 3. Third Option: Formally Abandon Unexhausted Claims 12 Petitioner may formally abandon his unexhausted claims and proceed with his 13 exhausted one(s). 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 option, he must file a pleading with this Court no later than March || 18,2022. Respondent may file a reply by April 18, 2022.

17 Petitioner is cautioned that once he abandons his unexhausted claims, 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 penton renders any later petition successive); see also 28 U.S.C. § 2244 (a)1b).? (D) the date on which the factual predicate of the claim or claims presented 23 could have been discovered through the exercise of due diligence.

24 (2) The time during which ie properly filed application for State post-conviction or 25 shall not be counted toward any period of tiaitaton scenes orbecation pending ||* 28 U.S.C. § 2244(b)(2) provides that a claim presented in a second or successive habeas corpus application under § 2254 shall be dismissed aie (A) the applicant shows that the claim relies on a new rule of constitutional law, 28 pravioucly unavailable oe on collateral review by the Supreme Court, that was 1 4. Fourth Option: File a Motion to Stay the Federal Proceedings 2 Petitioner may, along with a First Amended Petition, file a motion to stay this federal || proceeding while he returns to state court to exhaust his unexhausted claims. There are two ||methods potentially available to Petitioner, the “stay and abeyance” procedure and the “withdrawal and abeyance” procedure.

6 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 |lremedies. Rhines v. Webber, 544 U.S. 269, 277-78 (2005).

12 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 15 seek permission to amend his petition to include the newly exhausted claims after |lexhaustion is complete. King v. Ryan, 564 F.3d. 1133, 1135 (9th Cir. 2009). Although || under this procedure Petitioner is not required to demonstrate good cause for his failure to 18 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. King, 564 ||F.3d at 1141, quoting Mayle v. Felix, 545 U.S. 644, 659 (2005). © | 24 (B) (i) the factual predicate for the claim could not have been discovered 5 previously through the exercise of due diligence; and 26 (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing 27 have found the applicant guilty ofthe underlying offense 1 If Petitioner choses this fourth option, he must file a pleading with this Court no later ||than March 18, 2022. Respondent may file a reply by April 18, 2022.

3 Ill. CONCLUSION AND ORDER 4 For the foregoing reasons, the Court DISMISSES this case without prejudice for || failure to satisfy the filing fee requirement and failure to allege exhaustion of state judicial remedies as to all claims. If Petitioner wishes to proceed with this case, he must, no later ||than March 18, 2022: (1) pay the $5.00 filing fee OR submit adequate proof of his ||inability to pay the fee; AND (2) choose one of the options outlined above. Petitioner is || cautioned that if he fails to respond to this Order, the Petition will remain dismissed without || prejudice.’ See Rose, 455 U.S. at 522. The Clerk of Court shall send a blank Southern || District of California In Forma Pauperis Application and a blank Amended Petition form ||to Petitioner along with a copy of this Order.

13 IT IS SO ORDERED.

14 || Dated: sf 2(w/2t Aime 16 ted States District Judge 23 .

28 Although the dismissal is “without prejudice,” Petitioner is again cautioned that any later federal petition may be barred by the statute of limitations. See 28 U.S.C. § 2244(d)(1){2).