1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALEXANDER JACOME, Case No.: 3:22-cv-00546-GPC-MDD 12 Petitioner, ORDER: 13 v. (1) GRANTING MOTION TO 14 JAMES S. HILL, Warden, et al., PROCEED IN FORMA PAUPERIS 15 Respondents. [ECF No. 2]; and 16 (2) NOTIFYING PETITIONER OF 17 POSSIBLE DISMISSAL OF PETITION FOR FAILURE TO 18 EXHAUST STATE COURT 19 REMEDIES 20 21 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas 22 Corpus pursuant to

together with a motion to proceed in forma pauperis. 23 ECF Nos. 1, 2. 24 I. MOTION TO PROCEED IN FORMA PAUPERIS 25 In support of his motion to proceed in forma pauperis, Petitioner has submitted a 26 Prison Certificate from the facility in which he is presently confined which reflects a 27 balance of $0.00. Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS 28 1 Petitioner’s application to proceed in forma pauperis. The Clerk of the Court shall file the 2 Petition for Writ of Habeas Corpus without prepayment of the filing fee. 3 II. FAILURE TO ALLEGE EXHAUSTION AS TO ALL CLAIMS 4 Habeas petitioners who wish to challenge either their state court conviction or the 5 length of their confinement in state prison, must first exhaust state judicial remedies. 28

(b), (c); Granberry v. Greer,

, 133–34 (1987). Petitioner has 7 not alleged exhaustion as to ground four of the Petition. See ECF No. 1, Pet., at 9. Having 8 preliminarily determined the Petition contains both exhausted and unexhausted claims, the 9 Court notifies Petitioner of the possible dismissal of his petition. 10 The exhaustion requirement is satisfied by providing the state courts with a “fair 11 opportunity” to rule on Petitioner’s constitutional claims. Anderson v. Harless,

, 12 6 (1982). In most instances, a claim is exhausted once it is presented to a state’s highest 13 court, either on direct appeal or through state collateral proceedings. See Sandgathe v. 14 Maass,

(9th Cir. 2002). The constitutional claim raised in the federal 15 proceedings must be the same as that raised in the state proceedings. See

16 In order to avoid dismissal of this action, Petitioner must choose from the following 17 options: 18 III. PETITIONER’S OPTIONS 19 To avoid the Court dismissing the petition on its own accord, Petitioner may choose 20 one of the following options. 21 a) First Option: Demonstrate Exhaustion 22 Petitioner may file further papers with this Court to demonstrate that he has in fact 23 exhausted the claims the Court has determined are likely unexhausted. If Petitioner chooses 24 this option, his papers are due no later than July 18, 2022. Respondent may file a reply by 25 August 18, 2022. 26 b) Second Option: Voluntarily Dismiss the Petition 27 Petitioner may move to voluntarily dismiss his entire federal petition and return to 28 state court to exhaust his unexhausted claims. Petitioner may then file a new federal petition 1 containing only exhausted claims. See Rose v. Lundy,

, 520–21 (stating 2 that a petitioner who files a mixed petition may dismiss his petition to “return[] to state 3 court to exhaust his claims”). If Petitioner chooses this second option, he must file a 4 pleading with this Court no later than July 18, 2022. 5 Petitioner is cautioned that any new federal petition must be filed before expiration 6 of the one-year statute of limitations. Ordinarily, a petitioner has one year from when his 7 conviction became final to file his federal petition, unless he can show that statutory or 8 equitable “tolling” applies. Duncan v. Walker,

, 176 (2001); 28 U.S.C. 9 § 2244(d). The statute of limitations does not run while a properly filed state habeas corpus 10 petition is pending.

(d)(2); see Nino v. Galaza,

(9th 11 Cir. 1999). But see Artuz v. Bennett,

(2000) (holding that “an application is 12 ‘properly filed’ when its delivery and acceptance [by the appropriate court officer for 13 placement into the record] are in compliance with the applicable laws and rules governing 14 filings.”); Bonner v. Carey,

(9th Cir. 2005) (holding that a state 15 application for post-conviction relief which is ultimately dismissed as untimely was neither 16 “properly filed” nor “pending” while it was under consideration by the state court, and 17 therefore does not toll the statute of limitations), as amended

. However, 18 absent some other basis for tolling, the statute of limitations continues to run while a federal 19 habeas petition is pending. Duncan, 533 U.S. at 181–82. 20 c) Third Option: Formally Abandon Unexhausted Claims 21 Petitioner may formally abandon his unexhausted claim and proceed with his 22 exhausted ones. See Rose,

(stating that a petitioner who files a 23 mixed petition may “resubmit[] the habeas petition to present only exhausted claims”). If 24 Petitioner chooses this third option, he must file a pleading with this Court no later than 25 July 18, 2022. Petitioner is cautioned that once he abandons his unexhausted claim, he may 26 lose the ability to ever raise it in federal court. See Slack v. McDaniel,

, 488 27 (2000) (stating that a court’s ruling on the merits of claims presented in a first § 2254 28 petition renders any later petition successive); see also

(a)-(b). 1 iv) Fourth Option: File a Motion to Stay the Federal Proceedings 2 Petitioner may file a motion to stay this federal proceeding while he returns to state 3 court to exhaust his unexhausted claim(s). Rhines v. Webber,

(2005); Jackson 4 v. Roe,

(9th Cir. Sept. 23, 2005). There are two methods available to 5 Petitioner, the “stay and abeyance” procedure and the “withdrawal and abeyance” 6 procedure. 7 If Petitioner wishes to use the “stay and abeyance” procedure he should ask the Court 8 to stay his mixed petition while he returns to state court to exhaust. Under this procedure 9 he must demonstrate there is an arguably meritorious claim which he wishes to return to 10 state court to exhaust, that he is diligently pursuing his state court remedies with respect to 11 the unexhausted claim, and that good cause exists for his failure to timely exhaust his state 12 court remedies. Rhines, 544 U.S. at 277–78. 13 If Petitioner wishes to use the “withdrawal and abeyance” procedure, he must 14 voluntarily withdraw his unexhausted claim, ask the Court to stay the proceedings and hold 15 the fully-exhausted petition in abeyance while he returns to state court to exhaust, and then 16 seek permission to amend his petition to include the newly exhausted claim(s) after 17 exhaustion is complete. King v. Ryan,

(9th Cir. 2009). Although 18 under this procedure Petitioner is not required to demonstrate good cause for his failure to 19 timely exhaust, the newly exhausted claim must be either timely under the statute of 20 limitations or “relate back” to the claims in the fully-exhausted petition, that is, they must 21 share a “common core of operative facts” with the previously exhausted claims.

, 22 quoting Mayle v. Felix,

(2005). 23 If Petitioner chooses this fourth option, he must file a pleading with this Court no 24 later than July 18, 2022. Respondent may file a reply by August 18, 2022. 25 IV. Conclusion 26 For the foregoing reasons, the Court GRANTS Petitioner’s motion to proceed in 27 forma pauperis and notifies Petitioner that he has filed a Petition that contains both 28 exhausted and unexhausted claims and it is therefore subject to dismissal. In order to 1 || proceed with this case, Petitioner must respond to this Order by choosing one of the four 2 || options outlined above no later than July 18, 2022. If Petitioner fails to respond to this 3 || Order, the Court will dismiss the Petition without prejudice. See Rose,

. 4 IT IS SO ORDERED. 5 Dated: May 17, 2022 72 6 Hon. athe Coke 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28